5 
 327 
 
 GRESS) SENATE COMMITTEE PRINT 
 
 sion 
 
 THE DECLARATORY JUDGMENT 
 
 or 
 
 BRIEF 
 
 By EDWIN M. BORCHARtfJEP 
 
 Professor of Law, Yale University 
 SUBMITTED TO THE 
 
 r>V . ROO/ 
 
 COMMITTEE ON 
 
 UNITED STATESOpNATE 
 
 RELATING TO THE 
 
 BILL (S. 5304) TO AUTHORIZE THE FEDERAL COURTS 
 
 OF THE UNITED STATES TO RENDER 
 
 DECLARATORY JUDGMENTS 
 
 Printed for the use of the Committee on the Judiciary 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 1919
 
 [S. 5304, Sixty-fifth Congress, third session.] 
 
 A BILL To authorize the Federal courts of the United States to render declaratory 
 
 judgments. 
 
 Be it enacted by the Senate and House of Representatives of the United 
 States of America in Congress assembled, That section twenty-four of 
 chapter two of the Judicial Code, approved March third, nineteen 
 hundred and eleven, be amended by adding thereto the following: 
 
 "Twenty-sixth. The district courts, the circuit courts of appeals, 
 and the Supreme Court of the United States shall have power in any 
 action or in an independent or interlocutory proceeding, to declare 
 rights and other legal relations on written request for such declara- 
 tion, whether or not further relief is or could be claimed; and such 
 declaration shall have the force of a final judgment." 
 2
 
 THE DECLARATORY JUDGMENT A NEEDED PROCEDURAL 
 
 REFORM. 
 
 By EDWIN M. BORCHARD, 
 
 Professor of Law, Yale University. 
 
 [Reprinted from the Yale Law Journal, November and December, 1918.] 
 I. 
 
 The maintenance of the social equilibrium is accomplished by the 
 State through the administration of justice. 1 This is the modern sub- 
 stitute for the primitive practice of self-help. While the dawn of 
 civilization reveals but crude notions of judicial institutions, one of 
 the first manifestations of organized society was the creation of 
 machinery for voluntary arbitration as an optional substitute for 
 private vengeance and self-help, the acknowledged methods of insur- 
 ing respect for the societal rules. But the decisions of the first judges, 
 who were merely arbitrators, had only a moral force; and if the com- 
 plaining litigant was dissatisfied with the award, he could still resort 
 to self-help. For its own protection against the resulting anarchy 
 and violence, organized society, having acquired the power, took upon 
 itself the monopoly of administering justice through established 
 courts. But though this evolution is one of centuries, the funda- 
 mental theory still prevails that the redress of wrongs is the raison 
 d'etre both of violent self-help and of its more civilized substitute, the 
 courts : and the notion of vengeance, while rejected by modern schools, 
 is still evident in the penalties imposed in the administration of crim- 
 inal justice and in their tempered and better adjusted substitute, 
 damages, awarded in the administration of civil justice. The com- 
 mission of wrong, public or private, is essential, so we are taught, in 
 order that the judicial arm of the State may be invoked to restore the 
 social equilibrium. 2 Thus Blackstone says: "The more effectually 
 to accomplish the redress of private injuries, courts of justice are 
 instituted in every ciyilized society." 3 This theory was fundamental 
 in the common law. 
 
 Yet a study of modern social and industrial conditions emphasizes 
 the conviction that the social equilibrium is disturbed not only by a 
 violation of private rights, privileges, powers, and immunities 4 but 
 
 1 The complex relationships involved in the notion of justice are not here of immediate concern. The 
 equilibrium is established through law, which may be called distributive justice, and maintained through 
 the enforcement of law, which may be called corrective justice. It is in this latter aspect of justice that 
 our immediate interest centers. See on the general subject, Pulszky, The Theory of Law and Civil Society 
 (London, 1888), Ch. XII. 
 
 f almond, Jurisprudence (4th ed.) sees. 26, 27. Carter, Law: Its Origin, Growth, and Function, 45 et seq. 
 '3 Bl. 2, 15. See also Pound, Readings on the History and System of the Common Law (2d ed.) 30 
 et seq. Salmond, op. cit. 71: "Justice is administered only against wrongdoers, in act or in intent." 
 
 < In the course of this study we shall adopt Prof. Wesley N. Hohfeld's valuable analysis of jural relations 
 as first set forth in (1913) 23 Yale Law Journal, 16. These relations may most readily be presented in Prof. 
 Hohfeld's scheme of opposites and correlatives: 
 
 Jural /right privilege power immunity 
 
 Opposites \no-right duty disability liability 
 Jural /right privilege power immunity 
 
 Correlatives \duty no-right liability disability 
 
 The importance of this analysis is revealed throughout the subject of declaratory judgments. See 
 particularly Guaranty Trust Co. v. Hannay (C. A.) (1915J, 2 K. B., 536, 548, Buckley, L. J., and p. 571' 
 Bankes, L. J.
 
 4 THE DECLARATORY JUDGMENT. 
 
 by the placing of these individual advantages in grave doubt and 
 uncertainty. If the status of children as legitimate or illegitimate or 
 of persons as married or unmarried is uncertain, not only the indi- 
 vidual but the State has an interest in having the uncertainty settled 
 by an authoritative determination. If the title to property is uncer- 
 tain, the State, as well as the individuals concerned, has an interest 
 in removing the uncertainty, and within certain limitations courts of 
 equity entertain jurisdiction to remove clouds from title. 5 If the 
 meaning of a contract is in doubt, it must be broken in order to obtain 
 an authoritative construction of it, with expensive litigation to boot. 
 Similarly, apart from the trustee's bill for advice, a hostile attack 
 must generally precede the adjudication of conflicting claims under 
 a will. To determine these questions, which are illustrations merely, 
 our law .now requires an elaborate procedure involving delay, uncer- 
 tainty, and considerable expense, when all that is desired is an author- 
 itative determination of a simple issue of fact or of law. Parties 
 are compelled to indulge in legal hostilities whether they want to or 
 not in order that their legal relations may be cleared of doubt or 
 uncertainty. 
 
 That the law has not been oblivious to the necessity of certainty 
 and security in legal relations is evidenced in the fact that certain 
 agreements in order to obtain judicial recognition must be reduced 
 to writing or must be recorded. It is also evidence in the employ- 
 ment of such equitable remedies as bills quia timet, bills of peace 
 and bills to remove cloud from title, biUs for the rescission and can- 
 cellation of written instruments, in the action to perpetuate testimony 
 and in the bill for injunction. While the general purpose of these 
 equitable remedies is to create security, remove uncertainty, and 
 prevent litigation, 6 many of the remedies are cumbersome and their 
 grant is dependent upon very technical conditions precedent. Take 
 for example, the writ of injunction. Aside from its curative func- 
 tions in affording redress for certain kinds of continuing wrongs, it 
 has important preventive functions. One of the principal conditions 
 of its issuance, however, is the inadequacy of the remedy at law, 
 and as damages are deemed a sufficient palliative for most legal 
 injuries again on the theory that justice functions with entire 
 success if it gives money compensation after the commission of a 
 
 6 As a rule, however, only where the plaintiff is in possession. The dispute of title to personal property 
 can not, except in rare instances, be settled in any such manner. See infra, p. 30. 
 
 The bill quia timet is a writ of prevention designed to avoid possible future injury to the applicant's 
 property and to preserve it for its appropriate uses. This is effected by appointment of receivers or con- 
 servators to collect income, or by a demand for security. The injunction to prevent waste, etc., is in the 
 nature of a bill quia timet. The bill of peace is designed to establish and perpetuate a right or privilege 
 w.ucn may be controverted by different persons or at different times and is intended to prevent a mul- 
 tiplicity of suits. The bill to remove cloud from title and the cancellation of outstanding instruments 
 which inequitably affect a person's rights or privileges are in the nature of a remedy quia timet. Sometimes 
 the decree may in such cases operate as a declaratory decree. Infra, p. 30. 
 
 The action to perpetuate testimony, a provisional remedy well known in Anglo-American and in the 
 civil law, is designed to preserve and perpetuate for future use testimony which is in danger of being lost. 
 These equitable remedies are fully discussed in works on equity, particularly in those of Story and of 
 Pomeroy. All these remedies have a limited application, and tHeir grant is conditioned upon the fulfill- 
 ment of strict preliminary requirements; and while courts of equity have much flexibility in adapting 
 their relief to the situation presented, they incidentally have wide powers in imposing up'on applicants 
 f or the exercise of their functions such conditions as they may deem necessary to do equity in the case.
 
 THE DECLARATORY JUDGMENT. 5 
 
 wrong the injunction will be issued but rarely to restrain a breach 
 of contract or a trespass. 7 
 
 The limited scope of these various kinds of preventive relief 
 against insecurity and the disturbance of the status quo makes it all 
 the more necessary that we examine with care that instrument of 
 preventive relief known to the English and other legal systems as 
 the declaratory judgment. The distinctive characteristic of such a 
 judgment is that it carries with it no coercive decree or order com- 
 manding the defendant or the sheriff to do anything, an inherent 
 element of all executory judgments. Its purpose is to afford security 
 and relief against uncertainty and doubt. It does not necessarily 
 presuppose culpable conduct on the part of the defendant, but it 
 enables any party whose rights, privileges, powers, or immunities, 
 whether evidenced by a written instrument or not, have been dis- 
 puted, endangered, threatened, or placed in uncertainty by another 
 person to invoke the aid of a court to obtain an authoritative deter- 
 mination or declaration of his rights or other legal relations. 
 
 At the outset it will be well to circumscribe the concept of "decla- 
 ratory judgment." In a sense all judgments of courts declare jural 
 relations, but most of them, being caUed into operation by some 
 past or immediately threatened violation of a right, are followed by 
 further relief in the form of a judgment for the payment of damages 
 or a decree for an injunction. These judgments require the losing 
 defendant to do something, and may be called executory, i. e., they 
 may be executed. They always involve rights and duties. A 
 second class of judgments likewise determines or establishes a jural 
 relation; yet they are not followed by a decree ordering the per- 
 formance of some duty but merely by a decree which effects some 
 change of status, the judgment thus constituting merely a source of 
 new jural relations. Such are, among others, judgments of divorce 
 or of annulment of a voidable marriage, appointments of guardians 
 or receivers, admissions of wills to probate, judicial declarations of 
 death or of majority in civil-law countries, the judicial authentication 
 of arrangements in which the public interest requires an official pro- 
 tection of private jural relations, such as liquidations, certain charges 
 in corporate organization, 8 the administration of trusts, etc. They 
 may be the result of contentious or noncontentions proceedings, 
 although the latter are practically administrative rather than judicial 
 functions. These judgments, because they effect a change of status 
 and are primarily a source of new jural realtions, may be called 
 constitutive or, as we prefer to call them, "investitive." 9 
 
 7 Generally only in the case of such contracts as agreements not to carry on a trade, contracts for personal 
 services of exceptional character, certain covenants restricting the use of land, or where some distinctly 
 equitable ground such as the avoidance of a multiplicity of suits can be shown to exist. Usually an injunc- 
 tion against breach will be granted only where specific performance would be decreed. Courts of equity 
 are now somewhat more liberal in granting relief by injunction against trespass than were the early chan- 
 cery courts, but the narrow interpretation of "inadequacy of legal remedy" still confines the injunction 
 to a limited class of trespasses. See Moore v. Halliday (1903), 43 Oreg., 243; 99 Am. St. Rep., 742; 72 Pac., 
 801, and note thereto; Xenia Real Estate Co. v. Mac'y (1897), 147 Ind., 568; 47 N. E., 147 with quotation 
 from Pomeroy. 
 
 8 See In re Guardian Assurance Co. [1917], 1 Ch., 431. Toronto Corporation v. Toronto Railway (P. C.) 
 [19161, 2 A. C.,542. 
 
 9 This Benthamism, whose use may be pardoned, seems more descriptive than the term "titles of right" 
 employed by Salmond, op. cit. 91. The term "right" here is too uncertain in connotation. The Germans 
 call these judgments "constitutive." Perhaps a more accurate nomenclature might use the term "dives- 
 titive" for those judgments, like the annulment of a voidable marriage or dissolution of partnership, whirh 
 merely terminate an existing status. See Elemer Balog, Ueber das konstitutive Urteil (1907), 34 Zeitschri.t 
 fiir das priva* unrl ollfntliche R^cht der Gg<nwa r t, 123-16; also E. Holder, Ueber das Klagrecht (1904), 
 46 Jhering's Jahrbiicher, 282, 306, and Prof. Hellman, Klagrecht, Feststellungsklage und Anspruch (1892), 
 31 ibid., 90, 114; also Hellwig, System des deutschen Zivilprozessrechts (Leipzig, 1912), 287.
 
 6 THE DECLAKATORY JUDGMENT. 
 
 The judgment in either of these two actions, which are directed to 
 some relief, may indeed involve solely the determination of a status, 
 e. g., that the petitioner who seeks an order authorizing his inscription 
 as an adopted child, 10 or that the decedent whose will is to be probated, 
 is or was a citizen. 11 But tha^e judgments are, nevertheless, not 
 strictly declaratory. We would confine that term to those judg- 
 ments which merely declare the existence of a jural relation, i. e., 
 some right, privilege, power or immunity in the plaintiff or some duty, 
 no-right, liability or disability in the defendant. They do not 
 presuppose a wrong already done, a breach of duty. They can not be 
 executed, as they order nothing to be done. They do not constitute 
 operative facts creating new legal relations of a secondary or remedial 
 character; they purport merely to declare preexisting relations and 
 create no secondary or remedial ones. 12 Their distinctive char- 
 acteristic lies in the fact that they constitute merely an authentic 
 confirmation of already existing relations. 
 
 While the purpose of the declaratory judgment, as Bailhache, J. r 
 remarked in Guaranty Trust Co. v. Hannay, 13 is not to enable people 
 to "sleep o'nights," such a judgment will be rendered in the exercise 
 of the court's discretion when it will serve some practical purpose; 
 for example, when it will guide parties to a contract as to their future 
 conduct under it, and "with a view rather to avoid litigation than in 
 aid of it." Aside from its employment in cases in which the pre- 
 ventive equitable remedies above mentioned are inapplicable, thus 
 giving relief in a new class of cases, it has by its simplicity and effec- 
 tiveness served largely to replace those equitable remedies where they 
 were formerly employed; and furthermore, appreciation in practice 
 of the fact that an amicable remedy is often more desirable than and 
 fully as useful as a nonamicable means of adjusting disputes, has 
 persuaded litigants frequently to employ the declaratory action 
 instead of the coercive executory action. 
 
 Prof. Sunderland in an able article on the English declaratory 
 judgment 14 has pointed out that the more highly organized a society 
 is, the less it is called upon to display its power in order to insure 
 obedience for its decrees. The latent power of enforcement, uni- 
 versally realized, makes its exercise generally unnecessary. As 
 Salmond has expressed it: 
 
 To a large extent already, in all orderly societies, this element in the administration 
 of justice has become merely latent; it is now for the most part sufficient for the 
 State to declare the rights and duties of its subjects, without going beyond declaration 
 o enforcement. 15 
 
 Even in the international field, less perfectly ordered and least stable 
 among 1 the strata of organized society, only four cases are known 
 among the thousands of awards of arbitral commissions in which there 
 
 > In re Hollaender and Donnet (Sept. 8, 1916, Court of Rouen) reported in (1917) 44 Clunet, 1009. . 
 
 In re Lee's Will (Mar. 30, 1918, Ul S. Court for China) (1918), 27 Yale Law Journal, 1082. 
 
 11 Strictly soeikin?, jul?m?nts dismissing a complaint are declaratory in their nature, but they differ 
 in princinle from those now unler consideration in that some coercive relief was asked for. An exhaustive 
 theoretical discussion of the distin?tion between the declaratory judgment and the executory also called 
 disoositive or coniemnitory judgment is to be found in F. F. Heim, Die Feststellungswirkung des 
 Zivilurteils (Munich, 1912) particularly pr>. 45-50, 70-75. This monograph constitutes part 1 of v. 25 of the 
 Abhanllun?en zum Privatrecht und Zivilprozess. edited by Prof. Otto Fischer. 
 
 " (K. B.) 113 L. T., 98, 101. 
 
 A Modern Evolution in Remedial Rights the Declaratory Judgment (1917), 16 Mich. L. Rev., 69. 
 This is the only monographic study on the subject in the English language known to the writer, with the 
 excention of a brief article on the Scotch action of declarator in (1849) 41 Law Magazine, 173. 
 
 14 Salmond, op. cit., 66.
 
 THE DECLARATORY JUDGMENT. 7 
 
 has been a refusal to submit to the award. 18 Here, the arbitrators 
 having no power to enforce their decision, the constraint of public 
 opinion alone compelled obedience. A fortioii, therefore, when the 
 State possesses full power to enforce its decrees, legislative as well 
 as judicial, the inclusion of a special command with each decree seems 
 unnecessary. The mere authoritative declaration of the reciprocal 
 rights and obligations of the parties suffices to insure obedience; but 
 should a losing party charged with duties actually prove recalcitrant, 
 it is very simple, in view of the fact that the declaratory judgment is 
 res adjudicata, to obtain an ordinary judgment upon which a writ 
 of execution may issue. 
 
 Up to the present time, with the exception of that class of judgments 
 which we may call purely "investitive," such as decrees of divorce, 
 discharges in bankruptcy, appointments of receivers, etc., which do 
 not operate as remedies for wrongs, but merely as creators of new 
 jural relations, our actions and the resulting judgments are directed to 
 immediate coercive relief from the court, either by way of damages, 
 injunction or some other command or decree. The very form of the 
 demand by the plaintiff indicates a recalcitrant or culpable defendant 
 and the scene is set for legal war. 
 
 As Prof. Sunderland has pointed out, the declaratory action, in 
 cases where the plaintiff does not demand coercive relief, leads to 
 the same effective result as the hostile action for damages or an 
 injunction, with much simplified procedure and under the assump- 
 tion, justified in most cases between responsible litigants, that both 
 parties wish to do right and act honestly. The issue is framed for 
 the answer of the court in a stated question, for example, "whether 
 the assignment by F. T. B. * * * was void as against his trustee 
 in bankruptcy" 17 or the plaintiff claims a declaration "that the 
 defendants * * * in respect of the lands in question were not 
 entitled to exercise the power of entry, etc.; 18 and the facts being 
 before the court, in contradistinction to the procedure on demurrer 
 the specific issue of law is answered usually by a simple "yes" or 
 u no" or by a mere grant or refusal of the declaration requested. 
 The request for a declaration is very frequently accompanied in a 
 separate prayer by a demand for coercive relief in the form of injunc- 
 tion or other decree, the advantage being that even though the 
 injunction may be refused, the declaration of the legal relations 
 of the parties may still be made and the parties will govern themselves 
 accordingly. 19 This usually serves the plaintiff's purpose and renders 
 further assistance from the courts unnecessary. 
 
 H Three of these were based upon an alleged departure by the arbitrator from the terms of the compromis. 
 
 i" In re Bulteel's Settlements ]l917|. 1 Ch., 251, 255. 
 
 '8 Taff Vale Railway v. Cardiff Railway (C. A.) [1917], 1 Ch., 293, 302. Even before the enictment of 15 
 and 16 Viet., ch. .50, sec. 86 (1852), which is generally regarded as the first legislative authorization of the 
 declaratory judgment, Parliament had enacted in 1850 an act, 13 and 14 Viet., ch. 35, sec. 1, "to diminish the 
 delay and expense of proceedings in the high court of chancery in England," reading in part as follows: 
 
 "That it shall be lawful for persons interested or claiming to be interested in any question cognizable 
 in the said court as to the construction of any act of Parliament, will, deed, or other instrument in writing, or 
 any article, clause, matter, or thing therein contained, or as to the title or evidence of title to any real or 
 personal estate contracted to be sold or otherwise dealt with, or as to the parties to or the form of any deed 
 or Instrument for carrying any such contract into effect, or as to any other matter falling within the original 
 jurisdiction of the said court as a court of equity, or made subject to. the jurisdiction or authority of the 
 said court by any statute not being one of the statutes relating to bankrupts, and including among such 
 persons all lunatics, married women, and infants, in the manner and under the restrictions hereinafter 
 contained, to concur in stating such question in the form of a soecial case for the opinion of the said court, 
 and it shall also be lawful for all executors, administrators, and trustees to concur in such case." 
 
 is S*e, for example, London Assn. of Shipowners, etc., v. London & India Docks, etc. (C. A.) [18921, 3 Ch., 
 242, wh:re the claim for injunction was abandoned; Llandudno Urban Council v. Woods [1899], 2 Ch., 705, 
 where an injunction was refused.
 
 8 THE DECLARATORY JUDGMENT. 
 
 The close analogy between the declaratory judgment and arbitra- 
 tion will already have become apparent. In countries authorizing the 
 declaratory judgment, the law now furnishes parties with official 
 "arbitrators" whose function it is to declare the legal relations exist- 
 ing between the parties and the law endows their decision with binding 
 force. 
 
 The strongest attestation of the efficacy of this procedure is the 
 increasing frequency with which it has been resorted to in the English 
 courts. Of the official reports of cases in the chancery division in 
 1884, 34 per cent were declaratory actions; in 1916, based upon the 
 cases reported in second chancery division this percentage had risen 
 to 67 per cent and in 1917 it reached 66 per cent. There is every 
 probability that recourse to the declaratory action will continue to 
 increase. The great merits of the procedure, as evidenced by its con- 
 stant employment in England, Scotland, Ireland, India, Ontario, 
 British Columbia, and other Canadian Provinces, in Australia, New 
 Zealand, and several of the Australian States, and in Germany and 
 Austria commend it to the American legal system as a reform worthy 
 of adoption. 
 
 Before entering upon an account of the historical development of 
 this important institution and an analysis of the various classes of 
 cases in which it has been employed, it seems desirable to call atten- 
 tion to the fact that the declaration may be requested by the plaintiff 
 and made by the court either in the affirmative or in the negative 
 form. While all jural relations necessarily involve their correlatives 
 and their corresponding opposites in the other party, the affirmative 
 form of declaration is apparently generally employed where the 
 plaintiff asserts his own right or power or the defendant's duty or 
 liability. For example, A asks a declaration of his right of way over 
 B's land or of his power to assign a certain lease without the landlord's 
 consent; or he may ask a declaration that B is indebted to him for a 
 year's rent or that B is responsible for the debts that may be con- 
 tracted by his wife. The affirmative form of declaration is usual 
 when the plaintiff's cause of action is one in which he might have 
 been able to obtain coercive relief but is satisfied with a declaratory 
 judgment. 
 
 The second or negative form of declaration affords in certain cases 
 a novel kind of relief, to be explained presently. It is usually under 
 the form of a negative declaration that the plaintiff asserts his privi- 
 lege or immunity or the defendant's no right or disability (no power). 20 
 For example, B may ask a declaration that he is not obliged to return 
 to A a sum of money previously paid to B (privilege) ; or that he is 
 not subject, as a nonresident, to the payment of certain taxes 
 (immunity); or, he may claim a declaration that A has "no right" 
 to walk over his land ; or, being himself a remainderman, he may ask 
 a declaration that the defendant, a life tenant, has no power (i. e., 
 is under a disability) to convey the fee simple. In some of these 
 cases, notably in the first two, the plaintiff has no cause of action, 
 yet by reason of the declaratory procedure he is enabled as "equi- 
 table" plaintiff (prospective legal defendant) to bring the defendant 
 into court and to compel him to prove his claim or be barred from 
 asserting it thereafter against the plaintiff. 
 
 10 See Prof. Hohfeld's scheme of jural opposites and correlatives, supra, note 4.
 
 THE DECLAKATORY JUDGMENT. 9 
 
 The plaintiff asserts his privilege or freedom from the claim of the 
 defendant. This valuable form of relief by way of negative declara- 
 tion of privilege has been consciously admitted in England only since 
 1915, when the important case of Guaranty Trust Co. v. Hannay 21 
 was decided by the court of appeal, two judges deciding in favor of 
 the negative declaration and one against it. 22 In that case, certain 
 bills of exchange supported by certain forged bills of lading purporting 
 to represent cotton were purchased by the Guaranty Trust Co. of 
 New York. They were accepted in England by Hannay & Co. and 
 paid. It was then discovered that the bills of lading were forged and 
 did not represent goods actually shipped. Hannay & Co. brought an 
 action in the Federal district court in New York to recover the money 
 they had paid the Guaranty Trust Co. alleging that the bills of ex- 
 change were non-negotiable and conditional upon the actual exist- 
 ence of cotton. 23 The Federal circuit court of appeals held that the 
 decision depended upon English law, whereupon the Guaranty Trust 
 Co. brought an action in England for "a declaration that the plaintiffs 
 are not liable to repay to the defendants any sums paid by them" in 
 respect of these bills of exchange. The defendants denied the juris- 
 diction of the court to make such a declaration, inasmuch as the 
 plaintiffs had no "cause of action"; and certain English courts 24 
 had indeed considered this a condition precedent to a " declaration of 
 right" as it is called by the English Order XXV, rule 5, of the Rules 
 of 1883 of the Supreme Court. That rule reads: 
 
 No action or proceeding shall be open to objection on the ground that a merely 
 declaratory judgment or order is sought thereby, and the court may make binding 
 declarations of right whether any consequential relief is or could be claimed or not. 
 
 Bulkley, L. J., held that the cause of action here being in the de- 
 fendant and not in the plaintiff, no declaration could be made. 25 
 Pickford, L. J., relying principally on two earlier cases 26 in which the 
 question had not been specially raised, and not wishing to narrow the 
 court's power, held, while considering the exercise of the power very 
 exceptional, that the court had jurisdiction to make the declaration 
 asked. 27 
 
 Bankes, L. J., believed that while a cause of action was necessary 
 in view of the phrase "declaration of right," whereas plaintiffs asked 
 a declaration of their freedom from a duty (i. e., a privilege), still the 
 first part of the rule which speaks of "declaratory judgment or order" 
 gave the court power to make a declaratory order, without limiting 
 it to a declaration of "right" and the second part of the rule con- 
 templates a person seeking "relief," which is not confined to relief 
 in respect of a cause of action. 28 While this may be dictum, the 
 opinion constitutes a most exhaustive discussion 01 this phase of the 
 declaratory action; and while the grounds of the decision are not 
 
 21 (C. A .) [1915] 536. 
 
 22 The term negative declaration is not used in England, although it is in Germany. This particular form 
 of declaration has bean used in Scotland for 300 years and on the continent of Europe probably longer. Its 
 history will be set forth presently. 
 
 (1911) 187 Fed. 686; (1913) 210 Fed. 810. For a comment on this case, see (1918) 27 Yale Law Journal, 
 1016. 
 
 2< Brooking v. Maudsley, Son & Field (1SS3) 38 Ch. D., 636, 646; Williams . North's Navigation Collieries 
 (1904), 2 K. B., 44, 49; North Eastern Marine Engineering Co. v. Leeds Forge Co. (1906), 1 Ch., 324; (C. A.) 
 (1903) 2 Ch. 498: Offin v. Rochford Rural Council (1908) 1 Ch., 342. 
 
 20 (1915) 2 K. B.,548. 
 
 2 London Assn. of Shipowners, etc., v. London & India Docks, etc. (C. A.) (1892), 3 Ch., 242; Dyson v. 
 Attorney General (C. A.) (1912), 1 Ch., 158. 
 
 27 (1915) 2 K. B., 565. 
 
 2 Ibid. ,574.
 
 10 THE DECLARATORY JUDGMENT. 
 
 entirely satisfactory for two of the three judges seemed to think 
 that trie plaintiff ought to have an affirmative cause of action 
 subsequent decisions during the last two years have placed it beyond 
 doubt that the negative form of declaration is within the jurisdiction 
 of the court. 28a It is interesting to observe that the term declaration 
 of "right" which was probably not meant in the narrow yet tech- 
 nically correct sense in which Bankes, L. J., interpreted it, namely, as 
 excluding privilege, power or immunity is in the German code of 
 civil procedure of 1877 converted into the term declaration of "legal 
 relations," and in the Specific Relief Act of India of the same year, 
 though called a declaration of "right," is by the authoritative illus- 
 trations which accompany the statute applied not only to rights but 
 to other jural relations as well. 
 
 HISTORICAL DEVELOPMENT. 
 (A) ROMAN LAW. 
 
 The affirmative declaratory judgment finds .its origin in the Roman 
 law. In the Roman law of procedure, as in our own, the action at law 
 led to an executory judgment, condemnation 9 But it often proved 
 necessary to decide in a preliminary way certain questions of law or 
 of fact which the parties themselves, by agreement, or the magistrate 
 or praetor, at the request of one of the parties, might submit to the 
 jucfex for decision. This decision was merely a declaration of the 
 judex in response to the question submitted. Instead of commanding 
 the performance of some act, his decision constituted merely the 
 affirmation of an existing state of facts or of law. Being merely inci- 
 dental or preliminary to an ordinary executory action, it was Imown 
 as a prae-judicium. It ended in a pronuntiatio, not in a condemnatio. 
 In the period of the legis actiones this pronuntiatio was obtained by 
 means of the sponsio, so far as the question was not taken up in the 
 legis actio itself. In the formulary procedure the form of submission 
 was greatly simplified. In the intentio the formula stated the 
 specific question of law or fact which had to be determined; it was 
 much like the regular formula for the trial of an action, except that 
 the condemnatio was omitted. 
 
 This procedure proved so useful that it was ultimately extended to 
 independent actions where no executory judgment (condemnatio) 
 was required or desired. The actions then received the name actiones 
 praejudiciales, the dignity of actiones having theretofore been denied 
 them. 30 In application they were limited to certain classes of cases, 
 principally questions of status and of certain property rights and rela- 
 tions incidental to status, such as the amount of a wife's dowry which 
 had to be returned to her on the termination of the marriage, and, 
 less frequently, questions of the validity of legal instruments. These 
 actions, which were personal actions in rem, are grouped by Wind- 
 
 :a Infra, notes 307 et seq. 
 
 59 In this word "condemnatio," which was a civil executory judgment commanding that something be 
 done, e. g., that damages be paid, the underlying theory that'judicial relief involves the redress of wrong- 
 doing becomes clear. Only proceedings which 1 ed to a condemnatio were called actions in the classical 
 Roman law; with the exception of "investitive" judgments, e. g., judgments of divorce, the appointment 
 of receivers, etc.. this still appears to represent the conception of actions in our law. 
 
 Some authorities assert that they are still merely interlocutory judgments; but while of course it was 
 always possible to follow them with an executory action, this was so' frequently not done that their inde- 
 pendent status came to be recognized. Gaius is our principa 1 source of knowledge on the subject of the 
 actiones praejudiciales.
 
 THE DECLAKATOEY JUDGMENT. 11 
 
 scheid as including questions of status libertatis, civitatis, familiae. 
 The questions, among others, more frequently submitted to deter- 
 mination related to the status of and property in slaves; declarations 
 of liberty; questions of the power of the master, and of the father 
 over his children; questions of legitimacy and of family relationship; 
 the validity or invalidity of a will (querela inofficiosi testamenti) 31 and 
 of other legal instruments. 32 
 
 It is interesting to observe that the development of the declaratory 
 judgment during the Middle Ages and after the "reception" of Roman 
 law in continental Europe in 1495, questions of status, of property- 
 rights connected therewith, and of the validity or invalidity of wills 
 and other legal instruments, constitute the principal subjects of 
 declaratory actions. At the present time, however, instead of being 
 confined to a limited number of subjects with individual forms, the 
 declaratory action is almost unlimited as to subjects and has a general 
 form sufficiently wide to accommodate any specific questions. 
 
 That the declaratory action is in effect an action for the security 
 and protection of existing rights, privileges, powers or immunities 
 is made evident by tracing the history and purpose of the negative 
 form of declaratory judgment. By this action the plaintiff asks a 
 declaration that the defendant has no right as opposed to the plain- 
 tiff's privilege, i. e., that the plaintiff is under no duty to the defend- 
 ant, or that the plaintiff is under an immunity from any power of or 
 control by (i. e., there is a disability of) the defendant. The danger 
 of uncertainty and insecurity of rights and other jural relations against 
 which the declaratory action was designed to guard was threatened in 
 one of two ways either by the defendant's denial of well-established 
 and well-founded rights or other legal relations, or by the defendant's 
 assertion of unfounded claims. It was to meet the second class of 
 danger that the negative declaratory action was invented. The 
 classical Roman law hardly knew this remedy at all, except with 
 respect to the actio negatoria utilis, to protect a possessor or pledgee 
 against claims conflicting with the exercise of his rights, etc., in prop- 
 erty. In the Code of Justinian 33 the first mention is to be found of 
 the so-called Lex Diffamari, embodying a rescript of one of the 
 emperors to a certain Cresceus whose status some one had disparaged 
 by asserting that he was not free-born. The passage authorized the 
 person slandered to cite the adverse party, and if the latter failed 
 
 ' See 1 Bekker, Die Aktionen des romischen Privatreehts (Berlin, 1871), ch. 14, p. 272 et seq. The form 
 of the action really makes this an action for a declaration of the invalidity of a will. 
 
 ** A vast amount of learning in the literature of the Roman law has been devoted to the elucidation of the 
 actiones praejudiciales. Of that examined, the following may be recommended as the most useful: 4 Gaius 
 (Poste's 3d ed.), sec. 44: 1 Bekker, op. cit. 283 et seq.: 2 Bethmann-Hollweg, Der romische Civilprozess 
 (Bonn, 1865), sec. 97: Windscheid, Lehrbuch des Pandektenrechts (5th ed.), sec. 45, pp. 111-112; sec. 122, 
 pp. 360-3til; Baron, Pandekten (9th ed.) sec. 80, p. 161; and a valuable monograph by Degenkolb, Einlas- 
 sungszwang und Lrtcilsnorm (Leipzig, 1877), 96, 131, 146-168, 187 et seq. Degenkolb, p. 188, points out 
 certain remedies of the Roman law which are in the nature of declaratory actions, all of which are directed 
 to the security of the plaintiff, e. g., the interrogations in jure, the action arising out of nondelivery of a 
 receipt, the demand for a bond (cautio), and the liberationis condictio, or release from a possibly existing 
 obligation (but not the establishment of a non debet). 
 
 Some writers place in a separate category the summary action on bills of exchange and other commercial 
 documents which carry with them, after formal acknowledgment or admission of the signature of the party 
 charged, a right to the immediate issuance of a writ of execution. The party charged must then give Dond 
 to stay the execution. This procedure is known to most of the civil law countries, which endow commercial 
 contracts with a special sanctity and protection. See Borchard, Guide to the Law and Legal Literature of 
 Argentina, Brazil, and Chile (Washington, 1917) 95, 408. The procedure for securiug the debtor's acknowl- 
 edgment of his signature has some resemblance to the declaratory action. It is aimed primarily at recog- 
 nition or admission by the party defendant rather than at declaration by the judge, although this is its 
 subsidiary purpose, should the defendant refuse his recognition. See Leonhard, De natura actionis quae 
 praejudicialis vocatur (Leipzig, 1874), 17et seq. 
 
 83 ("ode, 7, 14,5. A translation of the passage is to be found in DeVillier's edition of Voet's Commentary 
 on the Pandects (Cape Town, 1900), Book XLVII, Tit. 10, p. 143.
 
 12 THE DECLAKATORY JUDGMENT. 
 
 to prove his assertion he was to be ordered to keep silent. Primarily 
 this involved both a declaration of privilege and of a right, followed 
 by an executory injunction. 
 
 The real development of this form of relief by action is to be found 
 in the Roman civil law of the Middle Ages, notably in Italy. Amon<* 
 the several forms of protection against the assertion of unfounded 
 claims which grew up at that period, four received extended applica- 
 tion: (1) the provocatio ex lege diffamari, which affords the broadest 
 foundation for the modern negative declaratory action, and the 
 provocatio ad agendum ex lege si contendat ; 34 (2) the so-called querela 
 nullitatis, 35 upon which the modern civil-law actions declaring the 
 nullity of legal transactions is founded; 36 (3) the so-called liberationis 
 condictio; and (4) the actio negatoria utilis. 37 There were of course 
 certain additional remedies to assure protection against unfounded 
 claims, but these were usually incidental to some coercive relief which 
 was prayed. These are the protection of possession against the tur- 
 batio verbis through the assertion of false claims, and the flexible 
 imploratio judicis for the determination of privilege or nonliability, 
 i. e., immunity. 38 
 
 This variety of measures for the protection of security would indi- 
 cate that society during the Middle Ages was more sensitive than 
 were the Romans to the social and individual danger of insecurity 
 arising out of uncertainty of legal relations. This is traceable in two 
 well-known legal phenomena of that period: the conceptions (a) that 
 it was a personal injury in the nature of slander to have an unfounded 
 action brought against one; and (6) that society had an interest in 
 the protection of the status quo. While an action is a method of 
 restoring a disturbed legal equilibrium and therefore an aid to ordered 
 community life, it nevertheless constitutes a disturbance of the peace 
 of the person threatened with it. For him it is a vacillation between 
 war and peace. Owing to this dual conception, and to the theory that 
 by awaiting a time unfavorable to the defendant for bringing suit the 
 plaintiff was in fact abusing his privilege of resorting to the courts 
 a kind of slander by way of action the procedure was invented of 
 enabling the prospective defendant to appear as plaintiff with the 
 power to compel his opponent to come forward with his claim, prove 
 it, or ever after remain silent (poena perpetui silentii) . In this 
 provocatio ex lege diffamari lies the origin of the negative declaratory 
 action. Confined at first to a remedy against the untimely institution 
 of a suit against the plaintiff, it soon developed into a remedy against 
 the institution of an unmeritorious or unfounded suit, by compelling 
 the defendant to bring his threatened claim to action at once or be 
 
 34 By this proceeding the surety could require the creditor to bring his action against the principal debtor, 
 under penalty of discharging the surety from all further liability. Baron, op. cit. 480. Similar relief 
 may be obtained by our bill quia timet by which the surety can require the debtor to discharge the debt 
 or the creditor to sue the debtor. Hayes v. Ward (1819, N. Y.), 4 Johns, ch., 123, 131; Wright v. Simpson 
 (1802), 6 Ves., 734. 
 
 5 Baron, op. cit. 124; Winscheid, op. cit. 223, note 6. 
 
 3t Probably most legal systems provide for a judicial declaration that a void act is void; this is the purpose 
 of the French action en nullit^ and of the German Nichtigkeitsklage. The Anglo-American law has inher- 
 ited from the civil law a somewhat similar procedure in the case of marriage void ab initio. But beyond 
 this, in our law, such a declaration would only be incidental to an action for some further relief, such as 
 setting aside or ordering the destruction or delivery up of a void instrument; and many courts refuse such 
 relief in the case of an instrument void on its face on the ground that its admitted invalidity is without 
 further relief a sufficient protection against unfounded claims based upon it. Such a decision would in 
 effect be a declaratory judgment. So also, a decision declaring the unconstitutionally of a statute. 
 
 " For the protection of privileges and immunities with respect to property. The privileges would, of 
 course, disclose the additional presence of rights in case of an active attempt to interfere with the exercise 
 of the privileges. 
 
 M Degenkolb, op. cit. 203, 204.
 
 THE DECLARATORY JUDGMENT. 13 
 
 thereafter barred from asserting it. 39 Against the assertion of an 
 unfounded money demand, the provocatio diffamari was aided by the 
 liberationis condictio and the imploratio judicis for the declaration of 
 plaintiff's freedom from duty or liability. 40 It may again be noted that 
 these remedies are independent of any tortious conduct on the part 
 of the person against whom they are directed. 
 
 Just as the provocatio ex lege diffamari was extended to substan- 
 tive claims of all kinds, so the provocatio ex lege si contendat, was 
 extended beyond the surety's action to protect himself from liability 
 to other actions in which the plaintiff alleged that a defense now 
 available to him might be lost by the defendant's delay in institut- 
 ing against him an action to which he had a valid defense. Both 
 proceedings, which tended to become interchangeable, looked to the 
 assertion of the plaintiff's privilege as against unfounded claims of 
 the defendant. 
 
 (B) MODERN LAW. 
 
 After the "reception" of the Roman law in central Europe both 
 forms of declaratory action, the positive and the negative, were recog- 
 nized, and down to the end of the nineteenth century the codes of 
 civil procedure of numerous states provided for the praejudiciales 
 actions and for the provocatios. In western Europe they do not 
 appear to have acquired great vogue, although the canon law gave 
 vitality to the provocatio ex lege diffamari (the negative form of 
 declaration) in reference to questions of status and particularly to 
 one of its important forms, the jactitation proceeding, as applied 
 especially to marriage. 
 
 France. That the early French law was familiar with declaratory 
 actions is shown by Merlin, who in his Repertoire universel * * * 
 de jurisprudence defines a ''declaration" as "Faction de declarer, de 
 faire connaitre," and mention is made of the declaration of a mort- 
 gage and of legitimacy. Jactitation proceedings were given wide 
 application to various branches of the law in France up to the enact- 
 ment of the code of civil procedure in 1807, when this form of pro- 
 ceeding failed of mention. Nevertheless, for some years thereafter 
 and down to comparatively modern times, the French law reports 
 occasionally disclose a case in which the plaintiff asks the court to 
 declare that the plaintiff has a right or power or that the defendant 
 who has threatened him with an action or adverse claim has no right 
 against him. 41 Merlin states that the civil code has not abrogated 
 the diffamari 'law. 42 The modern commentators, however, 43 and 
 several recent decisions 44 take the position that the diffamari pro- 
 cedure or action de jactance ou provocatoire is no longer admitted 
 in French law, possibly because of a general aversion of the French 
 law to a determination of interests in future. They give wide appli- 
 cation to the action for the perpetuation of testimony, which serves 
 to prepare for a future action for coercive relief; and slander in all 
 
 The general provocatio was a proceeding in the nature of a suit to quiet title directing all persons adverse- 
 to come forward with their claims or be barred. Degenkolb, op. cit. 207. There is, of course, a close relation 
 between this development of the provocatio difiamari and the slander of title, against which the old 
 Roman law had provided a remedy. But this required more than the threat of an action. 
 
 < 15y way of the querela nullitatis. 
 
 See under the heading "Action en justice" in 1 Fuzier-Herman, Repertoire General Alphabetique du 
 Droit Francais, 304-305, the cases mentioned in sees. 103, 106, 107, 111, 113. 
 
 <* Repertoire, s. V' Diflamari. 
 
 See 1 Glasson, Precis de procedure civil (2d ed.), 227, 228. 
 
 Cosnac v. Choppin d'Arnouville (18X8), Dalloz, Jurisp. Gen., 417 and note thereto; Longuety v. Soci6tfr 
 des ciments (1898), Dalloz, Jurisp. G<n., 420.
 
 14 THE DECLARATORY JUDGMENT. 
 
 its forms of reputation, of credit or of title formerly a frequent 
 subject of declaratory action, is more easily the subject of a success- 
 ful action for damages than it is with us. One of the familiar kinds 
 of declaratory action in the French code is the proceeding for the 
 authentication of written instruments, by which the court is asked 
 to declare whether the instrument is genuine or spurious. 45 This pro- 
 cedure was taken over by the German code of civil procedure of 
 1877 ; 46 but it goes little beyond ascertaining whether the document is 
 genuine or forged, and serves principally as an authentic means of 
 proof. The declaration is, however, res judicata, and thus differs 
 from the proceeding to perpetuate testimony. The French law 
 recognizes the function of the courts to pronounce the nullity of 
 acts or transactions made void by the substantive law. By statute 
 they have recently authorized the investigation of paternity by an 
 illegitimate child; and this results in a declaratory judgment of 
 paternity. 
 
 With this, the catalogue of declaratory judgments of the modern 
 French law may be said to be exhausted. France has no general 
 statute authorizing a declaratory judgment. But while the institu- 
 tion has fallen into disuse in modern France, it was from the France 
 of the fourteenth and fifteenth centuries, with contributions from 
 ecclesiastical law, that it found its way into Scotland, where it has 
 developed and flourished and whence, in 1852, it worked its way into 
 English practice. Before taking up the Scotch development, how- 
 ever, the law in certain other countries will be mentioned. 
 
 Germany. The German code of civil procedure of 1877, following 
 the practice of various German States, adopted the declaratory judg- 
 ment, both affirmative and negative, in its widest application. Sec- 
 tion 231 of that code (256 of the revised code of 1898) reads as follows: 
 
 An action may be brought for the declaration of the existence or nonexistence of 
 a legal relation (Rechtsverhaltnis) or for the declaration of the genuineness or spurious- 
 ness of a legal instrument, provided the plaintiff has a legal interest in having the 
 legal relation or the genuineness or spuriousness of the instrument determined by a 
 judicial decision. 47 
 
 In addition the code provides in sections 633, 638, and 640 for a 
 judicial declaration of the existence or nonexistence of a marriage or 
 of the relation of parent and child or of paternal power of the one 
 over the other. 
 
 There are in addition certain special laws which authorize a declara- 
 tory judgment in .particular cases, e. g., the determination of the 
 relationship of dependents to a deceased person under, various acci- 
 dent insurance laws; 48 the determination of the rank of conflicting 
 creditors under the bankruptcy act; and such miscellaneous cases as 
 those concerning conflicts of patent, trade-mark, and design privileges, 
 and the determination by a court of what is equitable under various 
 circumstances when the parties fail to agree. 49 
 
 Glasson, op. cit., 511. 
 
 Sec. 231; sec. 258 of the amended code of 1898. 
 
 1 Gaupp-Stein. Kommontar zur Civilprozessordnung (10th ed.), 578; vol. 2, CIS; SeufTcrt, Kommentar 
 zur Civilprozessordnung (7th ed.), 307 et seq.; 1 Fetersen, Die Civilprozessordnung (5th ed.), 492 et seq.; 
 1 Hallwig, System des deutschen Zivilprozessrechts (Leipzig, 1912), 280 et seq.; Wach, Handbuch des 
 Zivilprozessrechts (Berlin, 1885), 13, 52. 
 
 The Austrian code of 1895 contains in section 228 the same provision except that after the words "legal 
 relation" that code interpolates the words "or rights." See Fiirstl. Dieosterreichische Civilprozesswsetze, 
 mil Erlauterungen ( Wien, 1898), 353; Neumann, Commsntar zu den Civilprozessgesetzen vom 1, August, 
 1895 (Wien, 1898), 535 et seq. 
 
 * Industrial Accident Insurance Law, sec. 77; Agricultural Ace. Ins. Law, sec. 83; Building Ace. Ins. 
 Law, sec. 18; Marine Ace. Ins. Law. sec. 81. 
 
 49 These miscellaneous cases are fully set out in the commentaries mentioned, supra, note 47.
 
 THE DECLARATORY JUDGMENT. 15 
 
 The German code also makes provision in section 280 for the 
 interlocutory declaratory decree as follows: 
 
 Until the conclusion of the verbal proceedings leading to a final judgment, the 
 plaintiff, by widening the complaint, or the defendant by instituting a counter- 
 claim, may ask that a legal relation which in the course of the proceedings became 
 the subject of dispute and upon whose existence or nonexistence the decision of the 
 case depends in whole or in part shall be determined judicially. 
 
 Practically an identical section (236) is incorporated in the Aus- 
 trian code of 1895. 
 
 It will be observed that section 256 provides for both the affirma- 
 tive and the negative declaratory judgment. The term "legal 
 relation" which is the subject of declaration is used in the Savignyan 
 sense of "the relation determined by law of one person to another 
 person or group or to things." 50 The relation may be personal, with 
 or without reference to property, e. g., a question of family status 
 or membership in a club; 51 or real, e. g., A's right to an easement 
 over B's land. 52 It extends to all jural relations, whether rights, 
 privileges, powers or immunities. 53 The relation need not be a 
 direct one, e. g., between creditor and debtor; thus, it has been held 
 that two creditors of the same debtor have the necessary "legal 
 relation" to determine their respective claims to a given fund of 
 the debtor; or a creditor and a third person (partnership), for the 
 creditor to obtain a declaration against the partnership of his debtor's 
 interest in the partnership. 54 
 
 It will be noted that the subject of a declaration in Germany is a 
 "legal relation" which, while primarily intended to embrace only 
 the legal bond or association under examination, e. g., debtor and 
 creditor, must necessarily involve the jural relations composing the 
 bond or association as a right, privilege, power, immunity, etc.; 
 whereas the English rule of the Supreme Court under which declara- 
 tory judgments are rendered authorizes, under a literal interpreta- 
 tion, only a declaration of "right." The term "right," as we have 
 already observed, was undoubtedly used in that broad and juristically 
 inaccurate sense which includes not only a right, but also other jural 
 relations such as privilege, power or immunity and their jural 
 correlatives. 55 
 
 The "legal interest" on the part of the plaintiff which is required 
 as a condition precedent to the making of a declaration may in 
 general terms be described as such an interest as is to be found in 
 the danger of loss or of uncertainty of his rights or other jural rela- 
 tions by a failure of the court to make the declaration. Before the 
 danger has accrued and the existence of this condition is for the 
 court to determine the plaintiff's "interest" in the declaration is 
 considered insufficient; in other words, the action is either unfounded 
 or premature. Thus, you can not have a declaration of your right 
 or privilege against a person who doesn't dispute it, a principle 
 
 501 Savigny, System, G ct seq.: Windscheid, op. cit. sec. 37. It seems preferable to substitute for the 
 word "relation" in its present Savignyan connotation of vinrulum juris, the word "association" or "bond" 
 and to confine legal relations to relations between persons, although the relations may arise out of or with 
 resocct. to things. 
 
 r w (1882) 8 R. G., 3: (1884) 14 R. 0.. 90. R. G. is the abbreviation for Reiehsgerioht, the German Supreme 
 Court at Leipzig. The names of the parties are omitted from the official reports of German decisions. 
 
 M Potersen, op. cit. 493. 
 
 M German Civil Code, sec. 194, 209. Gaupp-Stein, op. cit. 607. 
 
 M (1810) 27 R. G., 345; Gaupp-Stein, op. cit. COS; or that a certain right is or is not vested to a third person; 
 or that the defendant has or has not a right against a third person. (18^8) 41 R. G., 345. See also Bahr, 
 Entscheidungen des Reichsgerichts, mit Besprechungen (Miinchen, 1883), 110. 
 
 "Supra, p.. 10.
 
 16' THE DECLAKATORY JUDGMENT. 
 
 common to all legal systems; a prospective heir can not during the 
 lifetime of a testator sue for a declaration of the validity or invalidity 
 of the will. 56 The German courts likewise assert a lack of "interest^ 
 in the declaration if the legal right to be established is already 
 ascertainable in some other form; 57 a conclusion which the English 
 courts also reach when a special proceeding has been provided by 
 statute for the determination of the particular jural relations in 
 question. 58 On the other hand, a sufficient "interest" is to be 
 found in the dispute of the plaintiff's rights, etc., by one in a position 
 to endanger them should his claims be upheld; even the dispute of 
 present or existing rights, etc., though their enjoyment is to be post- 
 poned to the future, dependent on the happening of a condition or 
 the mere lapse of time, 59 will support a declaration. So, in England, 
 the fact that a steamship company might some time wish to use 
 certain docks adjoining those then in use by them was sufficient to 
 justify a declaration that the company was not liable to pay certain 
 illegal charges assessed by the dock company upon the occupants of 
 the docks in question. 60 A sufficient " interest " in a negative declara- 
 tion is involved in the danger of a criminal prosecution or the liability 
 to a penalty; 61 or in the desire to stop the running of the statute of 
 limitations. 62 
 
 The declaration with respect to the genuineness or spuriousness of 
 a legal instrument, an institution adopted from the French law, goes 
 merely to the determination of its intrinsic genuineness. If its 
 validity or meaning depends upon proof of extrinsic facts, its inter- 
 pretation and construction will come under the head of disputed or 
 uncertain "legal relations." The declaration of its genuine or spu- 
 rious character is therefore of evidential value only, but it binds the 
 parties and their privies and has thus, as res judicata, an advantage 
 over the proceeding to perpetuate testimony. 63 The action applies to 
 any kind of legal instrument capable of affording evidence of a pri- 
 vate jural relation, and the plaintiff must, as in all declaratory judg- 
 ments, show his "interest" in the declaration requested. The burden 
 of proof of genuineness or spuriousness may rest either on the plain- 
 tiff or on the defendant, depending upon presumptions created by 
 the instrument itself and upon the particular matter to be proved. 
 The declaration of genuineness or spuriousness of legal instruments 
 is deemed to be the only exception to the rule that the German courts 
 will not make a mere declaration of facts. 64 
 
 Notwithstanding the wide scope for the declaratory action which 
 is opened by section 256 of the German code of civil procedure, it is 
 worthy of note that probably less than 5 per cent of the decisions 
 
 68 Thus, the interest is lacking when the dispute of the plaintiff'," rights or an assertion of a conflictin g 
 claim emanates from a person whose conduct can have no practical l.earing on the legal position of the 
 plaintiff. (1889) 24 R. G., 405; (1901) 49 R. G., 372; Gaupp-Stein, op. cit. 609. So a partner before the 
 termination of the liquidation proceedings can not sue for a declaration of disputed claims; nor can a regis- 
 tered association sue dropped or resigned members for the declaration of a possibile liability to share in 
 taxes. (1882) 8 R. G., 72, 74; Peterson, op. cit. 505. See to the same effect the Scotch decisions, infra, 
 note 155. 
 
 *' Gaupp-Stein, op. cit. 612, 613 and cases there cited hi notes 90-92. 
 
 M Barraclough v. Brown [1807], A. C. 615, 623. See also Magistrates of Rothesay v. The Officers of State 
 (June 22, 1820, Scotland), Kac. Coll., quoted in (1849) 41 Law Magazine, 170. 
 
 M The question of "future" interests as the sul ject of a declaratory judgment will be discussed in a 
 separate section. pot. 
 
 eo London Assn. of Shipowners, etc., *. London * India Docks, etc. (C. A .) [1892], 3 Ch., 242. 
 
 * l (1886) 16 R. G., 390; (1893) 31 R. G., 30; (1909) 70 R. G., 371 and ibid. 397. See also Burghis v. Atty- 
 Gen. [1911], 2 Ch., 139; Dyson v. Atty. Gen. (C. A.) [1911], 1 K. B., 410. China Mutual Steam Navigation 
 Co. P. Miclay 11918], 1 K. B., 33. 
 
 2 (1889) 23 R. G.. 346, 348; (1905) 61 R. G., 164, 168. 
 
 63 Petersen, op. cit., 497, 498; Seuffert, op. cit., 312, 313. 
 
 Infra.
 
 THE DECLARATORY JUDGMENT. 17 
 
 of the supreme court are merely declaratory. This may, in part, be 
 due to an early decision of the supreme court in 1881 which held that 
 a plaintiff could riot in effect take "two bites at the cherry" if he 
 had available an executory action (Leistungsklage) he could not first 
 sue for a declaration of his right (Feststellungsklage) and then bring 
 further actions for coercive relief. This would invite a multiplicity 
 of suits. 65 This decision and a few others like it were so severely 
 criticized by Dr. Bahr, 66 one of the draftsmen of the code, as contrary 
 to the intent of the statute that the supreme court later reversed its 
 position. 
 
 Experience has shown that after a right has been declared, rarely, 
 if ever, will an action to enforce compliance therewith be necessary. 
 Yet the practice appears to have been considerably influenced by 
 these early decisions; so that a declaratory action is rarely brought 
 if an executory action is available. Certain recent decisions, more- 
 over, while admitting that the requests for a declaration and for coer- 
 cive relief might be combined in one action, have taken the view that 
 the declaration must be directed to a different end than the executory 
 decree, and that a plaintiff should not request a declaration at all 
 on the ground that he has no "legal interest" in it if he might have 
 requested an executory judgment. This now has an additional reason, 
 for the amended code of 1898 provides a form of action for executory 
 judgments with respect to obligations to become due in the future, 
 such, for example, as periodically recurring payments of rent. While 
 such a judgment was formerly declaratory in its nature, requiring a 
 new action, if necessary, upon the former judgment to obtain exe- 
 cution on the due day, it is now an executory judgment on which a 
 writ of execution can immediately issue on the due day. 67 The result 
 is that for the most part the declaratory action in Germany is in 
 practice confined to demands for the enforcement of which an execu- 
 tory action has not yet accrued, and to actions for a negative declara- 
 tion. The interesting thing to note is that the only case in which 
 under the English act of 1852 a declaration could be made, namely, 
 where it might, if requested, have been followed by coercive relief, is 
 the particular case in which it could not be sued for in Germany. 
 
 Italy. Modern Italy appears to have abandoned the Middle Age 
 declaratory action, for Mattirolo informs us that the only kind of 
 judgment, apart from declarations of nullity, now rendered in Italy 
 are executory judgments. 68 
 
 Spain and Spanish America. Modern Spain and various countries 
 of Spanish America have inherited through the Siete Partidas 69 of 
 the Middle Ages, in the form of the action .of jactancia (jactitation), 
 the old Roman action of the lex Diffamari which enabled a prospective 
 legal defendant threatened with an action to appear as "equitable" 
 plaintiff with the demand that his opponent be compelled to bring 
 his threatened action or to keep silent. These provisions of the Siete 
 Partidas have been adopted almost literally in several Spanish-Ameri- 
 
 (1881) 4 R. G., 437. 
 
 Bahr, op. cit., 168-170. 
 
 57 T.iese actions to safeguard "future" interests will be more fully discussed infra. 
 
 ** 1 M ittirolo, Tnttato de Diritto Giudiziano Civile Italiano (4th'ed.), 63. For a short historical accounij 
 of the negative declaratory action, containing a statement that it was expressly omitted from the Italian 
 CJ le \\ith the exception of the creditor's action ex lege si contendat. see 1 Enciclopedia Giuridica Italians, 
 pt. V, s. V, Azione, 1116-1117. 
 
 <* Ley 46, tit. II, part. 3a. See 3 Codigos Espafloles, 30. 
 
 10790819 2
 
 18 THE DECLAEATOHY JUDGMENT. 
 
 can codes 70 and a recent decision of the Supreme Court of Spain 71 
 affirms the modern survival of the old action of jactancia authorized 
 by law 46 of the Partidas, and denies its implied repeal by article 1976 
 of the civil code. As expressed in the Bolivian code, whence they 
 were directly taken by the codes of Uruguay and Argentina, these 
 provisions read: 
 
 In case any person boasts or asserts against another matters which cause the latter 
 to lose good reputation or honor, the offended person may require the boaster to bring 
 an action or to keep silence. 
 
 When a person who must go on a journey by land or sea asserts that another is await- 
 ing the moment of his dt parture to bring some action against him he may ask that the 
 latter be compelled to bring his action. (Art. 191.) 
 
 Prof. Gallinal of Uruguay, an authority on civil procedure, is of 
 the opinion that the action of jactancia has outlived its usefulness 
 and should be eliminated from the codes of Latin-America as it has 
 already been in Italy and other States. 72 He suggests replacing it 
 with a general action for a declaratio juris or declaratory judgment. 73 
 
 Scotland. The connecting link between the declaratory action of 
 the Middle Ages and modern English law is to be found in the law 
 of Scotland. Just when the declaratoiy action was adopted in Scot- 
 land it is difficult to say. The modern works on Scotch practice 
 disclose no statute or rule of court which expressly authorizes or 
 recognizes the so-called " action of declarator." Inferences as to its 
 origin in Scotland have been indulged. Lord Stair states 74 that 
 " declarators of right proceeded of old by brieve of right which is now 
 out of use." A writer in the Law Magazine 75 points out that the 
 brieve was replaced by the summons in 1532, when the Scotch court 
 of session was established. That court was approved by the Scotch 
 parliament hi 1537 and Morrison's Dictionary discloses several cases 
 of "declarator," the earliest of which is dated July 16, 1541. 76 The 
 institution has had a history in Scotland, therefore, of nearly four 
 hundred years. As to its sources, it has been suggseted that these 
 are to be found (1) in the brieve of right, which was worded like the 
 summons of declarator; (2) in the forms adopted by the old episcopal 
 courts for the administration of the ecclesiastical law, notably the 
 declarations of legitimacy, marriage, and other matters of status; 
 the form of their judgment ran " pronunciamus decernimus et declara- 
 mus"; and (3) in the forms of the French law, according to which 
 the court of session originally administered justice, and which prob- 
 ably contributed, by way of example, to the employment of the 
 declaratory action. 77 
 
 The declaratory action is defined by Scotch institutional writers 
 to be one "in which the right of the pursuer [plaintiff] is craved to 
 be declared, but nothing is claimed to be done by the defender 
 
 "Bolivia, Code of civil procedure, arts. 189 r 191; Chile, arts. 258-202, 278; Argentina (Buenos Aires. 
 Capital), arts. 425-432: Uruguay, arts. 259, 2t.O, 8^3-872. Similar provisions are to be found in the codes of 
 Panama, Costa Rica, Mexic-o (federal District), and of other States of Spanish- America. 
 
 N Decision of Sept. 27, 1912, Tribunal Supremo, No. 1K3 in (1012), 42 Jurisprudence civil, n. s., 1089. 
 
 n Rafael Gallinal, Estudios sobre el Codigo de Procedimiento Civil (Montevideo, 107), 105 et seq. 
 
 " The Spanish nomenclature may easily mislead the casual reader in this matter. The jt;icio ordinario 
 declarative is the usual form of action leading to a judgment which may be executed. The juk io ejecutivo 
 is the summary form of action authorized in certain cases of indebtedness on a comn ercial instrurr.er.t, 
 provisional execution beginning at once by the issue of a writ of attachment against the debtor who has 
 only a brief time, generally a few days, to put in a defense and stay final execution. 
 
 74 4 Institutions' of the Law of Scotland (More's ed. 1832), 4, 1. 
 
 " (1S49) 41 Law Magazine, 179. 
 
 ' Ibid. 179. 
 
 77 (1849) 41 Law Magazine, 180
 
 THE DECLARATORY JUDGMENT. 19 
 
 [defendant]." 78 Lord Stair informs us, further, that "such actions 
 may be pursued for instructing or clearing any kind of right relating 
 ' to liberty, dominion, or obligation"; and that "there is no right but 
 is capable of declarator." 79 
 
 Among the numerous forms of declarator, which may be either 
 affirmative or negative, disclosed by the Scotch forms 80 are declara- 
 tions of marriage and of nullity of marriage, 81 of legitimacy, of 
 bastardy, 82 of putting to silence, the common form of negative declara- 
 tory action, by which the defendant is by summons given a limited 
 time to bring forward his action or have a decree of perpetual silence 
 pronounced against him; 83 of property interests of all kinds, including 
 title, easements and servitudes, liens and burdens on the land; 84 of 
 the so-called "nonentry duties;" 85 of the so-called "expiry of the 
 legal" term of redemption; 8e of the forfeiture of rights; 87 of property 
 in or right of succession to movables; of trust, validity of trust deed, 
 power to revoke a trust deed, or that trust instruments are ultra 
 vires; 88 of partnership ; 89 of proving the tenor, 90 and other miscel- 
 laneous actions, including those rescissory actions which merely 
 declare a deed or other instrument null and void, without any declara- 
 tion or judgment against the defendant. 91 
 
 The Scotch law recognizes three forms of the declaratory action: 
 (1) the pure declarator alone; (2) the declarator with prayer for 
 possessory or petitory relief ("conclusions"); and (3) the "declara- 
 tory adjudication." The first is confined purely to the declaration of 
 jural relations. The law of Scotland, instead of making such declara- 
 tion optional, makes it in certain cases a condition precedent before 
 an action for coercive relief can follow. So in cases of statutory for- 
 feitures, proving the tenor of a lost instrument, foreclosing the equity 
 of redemption, relying on title based upon prescriptive possession, 
 seeking to show that facts and circumstances prove or disprove a 
 marriage or legitimacy where that conclusion is denied; partition of 
 heritable property among heirs; and in other cases, the request for a 
 declaration must precede the request for further relief. 92 It is com- 
 mon practice, as in England, to combine the request for affirmative 
 relief with one for a declaration, and often where the former is 
 denied, the latter may still be granted. The commentators assert that 
 
 78 4 Stair, 3, 47: 4 Erskine, Principles of the Law of Scotland (20th ed.), 1, 25, 46. See also Mackay, Manual 
 of Practice in the Court of Session (Edinburgh, 1893), 175. 
 
 79 4 Stair, 3, 47: ibid., 39, 15. 
 
 so See 4 Scots Style Book, s. V, Declarator. 
 
 81 Fraser, Husband and Wife (2d ed.), 1238, 1244. 
 
 88 The action to declare a child a bastard can not be brought in English law. Yool v. Ewing [1904] Irish 
 Ch., 434, 445. 
 
 w This procedure is also well known in RomamDutch law as practiced in South Africa. See Morice. 
 English and Roman-Dutch Law (2d ed.), 377; Voet, Bk. XLVII, tit. 10; De Villicrs, The Rom;>n and 
 Roman-Dutch Law of Injuries (Cape Town, 1899), 143: 4 Nathan, Common Law of South Africa (Grahains- 
 town, 1907), Chap. XVIII. On the Scotch action of nutting to silence, see Fraser, op. cit., 1244. 
 
 8) 1 Bell, Commentaries on the Law of Scotland (7th ed. by McLaren), 785. 
 
 *> Declaration of the landlord's ''right" of reentry for failure to pay rent or other dues. It is a technical 
 actian described in 1 Bell, op. cit., 22. 
 
 86 Tlu's is the action by which a creditor who holds security in the form of an interest in land may ask the 
 court to declare that, 10 years having expired since the due date of the debt, he is entitled to an irredeemable 
 title to the property, the debtor having allowed the 10 years to expire during which he had a legal power 
 of redemption. Trie creditor calls on the debtor to exercise his power of redemption, otherwise to have it 
 judicially declared as foreclosed. This is one of the cases in which the declarator is essential not merely 
 optional to the acquisition of an irredeemable title by the creditor. See Ormiston v. Hill (1809, Scot.) 
 Fac. Coll., 155, and 1 Bell, op. cit. 743. 
 
 87 Mackay, Manual, op. cit. 79, 378. The declaration of the forfeiture of a lease is known as a declaration 
 of " irritancy." See ease of Wylie v. Heritable Securities Invest. Assn. (1871), 10 M., 253. 
 
 89 2 Bell, op. eit. 380, note 3.' 
 
 89 2 Bell, op. cit. 502, and cases there cited. 
 
 90 That is, proving the tenor of lost or destrayed instruments by which a jural relation is required to be 
 established. See Lord Lovat v. Fraser (1845), 8 D., 310; Erskine, op. cit. 542-544. 
 
 n Bell, Dictionarv and Digest of the Law of Scotland (7th ed. by Watson), 291; Erskine, op. cit. 542. 
 81 Mackay, op. cit. 78, 79, 374-379.
 
 20 THE DECLARATORY JUDGMENT. 
 
 "wherever a right upon which an action is to be founded is not clear 
 as to its existence or extent, a declarator is proper, and sometimes 
 necessary, before an action can proceed to enforce the right." B3 
 The "declaratory adjudication" is a method of vesting a legal title 
 in the person who has the beneficial interest. 94 
 
 Strictly speaking, while a declaration of title is of course made, the 
 judgment here, as in some of the cases mentioned above, is more than 
 declaratory. It constitutes the certification or vesting of a new jural 
 relation, and is, therefore, investitive in its nature, whereas the declar- 
 atory judgment proper merely declares a jural relation which is 
 already in existence, the determination having retrospective force to 
 the period when the right or other juralr elation commenced. There 
 is, for example, a sharp distinction between the declaration of the 
 nullity of a "marriage" which never really was a marriage at all, as 
 was contemplated by the negative jactitation proceeding in England, 
 and the declaration of the nullity of a marriage voidable at the option 
 of one of the parties. The former judgment is declaratory, the latter 
 investitive. Closer analysis of the numerous actions which in Scot- 
 land are called declaratory reveals that many of them fall within the 
 class of what we would call investitive, and the conclusion can not 
 be avoided that it is only in the unlimited scope given to the negative 
 declaratory action, in the willingness to declare facts and "future 
 interests," 95 and in such special proceedings as the declaration of 
 bastardy that Scotch law affords greater opportunity than the English 
 law of the present day for the declaratory action. 
 
 As in other systems of law, the exercise of the power to render a 
 declaratory judgment is discretionary with the court; the plaintiff 
 must show a substantial interest in the declaration; the jural rela- 
 tion he asserts must be disputed; 98 the declaration of rights, etc., to 
 be enjoyed in the future must serve some useful purpose in settling 
 disputed or doubtful legal relations, so that it will not be made if it 
 can not constitute res judicata. 97 Yet recent decisions show a greater 
 disposition to declare contingent rights by anticipation, provided 
 there is some one to oppose the declaration. 98 While the Scotch 
 courts like other courts affirm that they will not declare abstract 
 propositions nor the meaning of statutes 99 unless directly affecting 
 private jural relations, 100 they are more readily disposed to declare 
 mere facts, when serving some useful purpose, than are the courts of 
 Germany or England. 101 
 
 England. England owes the advantages it enjoys under the 
 declaratory action to the agitation of Lord Brougham, begun in 
 1828. In a notable speech delivered on February 7 of that year in 
 the House of Commons on the state of the courts of common law, 102 
 he pointed out the great benefits enjoyed by Scotland in enabling 
 persons who apprehend future litigation to proceed by way of a 
 
 93 Bell, Principles, see. 1995; Mackay, Manual, 378. 
 
 9 Dalziell v. Dalziell (1756), 16 M., 204; 1 Bell, Commentaries, 751. 
 
 Infra. 
 
 98 See Magistrates of Edinburgh . Warrender (1863), 1 M., 887, by Lord Neaves. 
 
 97 Thus, where a declaration was asked of the power of a plaintiff under a trust deed to give certain sums 
 by will provided he had no issue, the declaration was declined because it would not bind unborn children. 
 Harvey v. Harvey's Trustees (1860), 22 D., 1310, 1326. 
 
 *> Chaplin's Trustees v. Hoile (1890), 28 Sc. L. Rep., 51; Falconer Stewart v. Wilkies (1892) 29 Sc. L^ 
 Rep. 534. 
 
 99 Todd . Higginbotham (1854) 16 D. 794. 
 
 100 Leith Police Commissioners v. Campbell (1866). 5 M., 247. 
 if" Infra. 
 
 M 18 Hansard (2d ser., 1828), col. 127, col. 179.
 
 THE DECLARATORY JUDGMENT. 21 
 
 declaratory action to have their rights determined, and he mentioned 
 its particular application to doubtful or disputed interests in prop- 
 erty. He introduced bills for the adoption of the practice in 1843, 
 1844, 1846, 1854 and again in 1857, the last of which resulted in the 
 legitimacy declaration act, 1858. 103 He obtained a very considerable 
 following, particularly among the judges, and on numerous occa- 
 sions in the House of Lords successive chancellors, including Lord 
 Thurlow, Lord Loughborough, Lord Eldon and others among their 
 successors, called attention to the merits of the Scotch action of 
 declarator., Speaking with reference to the negative declaratory 
 action where the plaintiff has no affirmative cause of action, a pro- 
 ceeding not possible in England until 1883, Lord Brougham in 1846 
 in delivering his opinion in the House of Lords in the case of Earl 
 of Mansfield v. Stewart 104 said : 
 
 I can not close my observations in this case without once more expressing my 
 great envy, as an English lawyer, of the Scotch jurisprudence, and of these who enjoy, 
 under it, the security and the various facilities and conveniences which they have 
 from that most beneficial and most admirably contrived form of proceeding called 
 a declaratory action. Here, you must wait till a party chooses to bring you into 
 court; here, you must wait till possibly your evidence is gone; here, you have no 
 means whatever, in ninety-nine cases out of a hundred, of obtaining the great benefit 
 of this proceeding. 105 
 
 Lord Brougham lived to see his proposed reform partially adopted 
 in an amendment to the chancery procedure act of 1852, to which 
 we shall recur presently, and in the legitimacy declaration act, 1858. 
 By that act it was provided that any natural-born British subject, or 
 any person whose right to be deemed a natural-born subject depends 
 wholly or in part on the validity of a marriage, being domiciled in 
 England, may apply by petition to the court for matrimonial causes 
 praying for a decree declaring that his marriage was or is a valid 
 marriage; and the court is to have jurisdiction to hear and decide the 
 application, and to make its decree declaratory of the validity or 
 invalidity of the marriage. 106 
 
 Mention has already been made of the act of 1850 107 which enabled 
 persons interested in questions cognizable in the court of chancery 
 to state special cases for the opinion of the court as to "the construc- 
 tion of any act of parliament, will, deed, or other instrument in writ- 
 ing, or any article, clause, matter or thing therein contained, or as to 
 the title or evidence of title to any real or personal estate contracted 
 to be sold or otherwise dealt with"; and enabled the court 
 
 to determine the questions raised therein or any of them, and by decree to declare 
 its opinion thereon, and so far as the case shall admit of the same, upon the right 
 involved therein, without proceeding to administer any relief consequent upon such 
 declaration; and that every such declaration of the said Court contained in any such 
 decree shall have the same force and effect as such declaration would have had 
 if contained in a decree made in a suit between the same parties instituted 
 by bill; Provided, * * * that if the court shall be of opinion that the questions 
 raised * * * cannot properly be decided upon such case, the said court may 
 refuse to decide the same. 
 
 As an incident to regular actions, the court of chancery had occa- 
 sionally made declarations, notably in the construction of wills and 
 
 W3 21 and 22 Viet., ch. 93. 
 
 W 5 Bell, 139, 160. 
 
 w The object of this suit was to obtain a declaration that the vendor could convey a good title to Lord 
 Mansfield, the vendee, who threatened to withhold payment on the ground that the title was in doubt. 
 
 w A person not domiciled in England cannot, therefore, obtain a declaration of the validity of his mar- 
 riage, although it was celebrated in "England. Countess De Gasquet James v. Duke of Mecklenburg- 
 Schwerin (19141, p. 53, 70. 
 
 107 Sii'Vrd, p. 7. An act to diminish the delay and expense of proceedings in the high court of chancery 
 in England. 13 and 14 Viet., ch. 35, sees. 1, 14.
 
 22 THE DECLARATORY JUDGMENT. 
 
 trust settlements. This power was apparently vastly enlarged by the 
 chancery procedure act, 1852, section 50, which provided that 
 
 No suit . . . shall ba open to obJ3ction on the ground that a merely declaratory 
 dscrae or ordar is sought thereby, and it shall be lawful for the Court to make binding 
 declarations of right without granting consequential relief. 
 
 Judicial construction, however, greatly narrowed these important 
 grants of power. Vice Chancellor Wood in 1853 confined the author- 
 ity given by these acts practically to cases "where it should appear 
 to be necessary for the administration of an estate or as incidental 
 to coercive relief"; 108 and Chancellor Turner in 1856 stated that 
 section 50 did not extend the 
 
 cas?s in which declarations of right may be made, but merely enables the court to 
 djclara rights without following up the declaration by the directions which, under 
 the old practice, have been necessarily consequent upon them. 109 
 
 And the section was further restricted by the traditional aversion 
 of the courts to making findings as to the enjoyment of rights in the 
 future or as to those which depend upon a contingency. 110 
 
 The power was further narrowed by the construction that the 
 courts could make a declaration only as an incident to coercive 
 relief or where there was a "right" to consequential relief for which 
 the plaintiff had merely chosen not to ask. Where there was no 
 "right" to consequential relief, no declaration would be made* 111 
 As this proceeding arose before the Judicature Acts, it is possible to 
 comprehend that it may have appeared to a court of equity as some- 
 thing of an anomaly to make a declaration as to a legal right when 
 not preliminary or incidental to any equitable relief; and that it 
 may have appeared inexpedient to determine a question concerning 
 a jural relation which had not actually arisen and might never arise. 
 This view of the court's power inevitably made it impossible to 
 institute a proceeding for a negative declaration by which a plaintiff 
 who fears that the defendant will bring an action against him can 
 ask quia timet by way of anticipatory defense, so to speak, for a 
 declaration that the defendant has no just claim against him. 112 
 
 But with the reforms instituted by the Judicature Act of 1873 the 
 ground was laid for the adoption of new rules of court. Order XXV, 
 rule 5, of the Supreme Court Rules of 1883 113 now paves the way for 
 a wide application of the declaratory judgment. It provides: 
 
 No action or proceeding shall be open to objection, on the ground that a merely 
 declaratory judgment is sought thereby, and the Court may make binding declara- 
 tions of right whether any consequential relief is or could be claimed, or not. 
 
 Although this language would seem to make it clear that the plain- 
 tiff need no longer have a cause of action entitling him to affirmative 
 relief the only purpose which appears to have been intended by the 
 insertion of the words "or not," it was nevertheless only in 1915 114 
 that the court of appeal fully admitted that a plaintiff may ask the 
 court not only affirmatively to declare his right or power, but also 
 negatively to declare the no-right or disability of his opponent 
 
 " Garlick v. Lawson (1853), 10 Hare, App. XIV. 
 
 >< Lady Lan<*dale v. Bri<s (1856); 8 De G. M. and G., 391, 427. 
 
 T,adv Lan-dile v. Bri<s, supra; Briiht v. Tyndall (1876), 4 Ch. D., 189, 196. 
 
 1 R33ke v. Lord Kensington (1856), 2 K. & J., 753, 760. 
 
 2 Jackson v. Turnley (1853), 1 Drew, 617, 627; Rooke v. Lord Kensington, supra. 
 
 3 7 Statutory Rules and Orders, 51. 
 
 Guaranty Trust Co. '. Ilannay (C. A.) [1915], 2 K. B. 536. The decision was by two judges against 
 i. See supra, p. 9.
 
 THE DECLARATORY JUDGMENT. 23 
 
 defendant (i. e., the privilege or immunity of the plaintiff). As 
 late as 1906 the court had expressed the opinion 115 that only a 
 plaintiff who had an affirmative cause of action could request a 
 declaration. It is also to be noted that the power to make dec- 
 larations under Order XXV, rule 5, is most freely exercised in the 
 Chancery Division, much less frequently in the King's Bench division, 
 and not at all in the Probate Division, to which it has been held not 
 to apply. 118 
 
 Furthermore, the amended rules of 1893 have introduced Order 
 LIV, A: 117 
 
 In any Division of the High Court, any person claiming to be interested under a 
 deed, will, or other instrument, may apply by originating summons for the deter- 
 mination of any question of construction arising under the instrument, and for a 
 declaration of the rights of the persons interested. 
 
 The exercise of the power is expressly made discretionary. This 
 is in addition to the power long exercised by courts of equity in 
 advising and directing trustees in their powers, duties and respon- 
 sibilities, and the determination of any question arising in the 
 administration of a trust "affecting the rights or interests of the 
 
 Eersons claiming to be creditor, devisee, legatee, next of kin, or 
 eir-at-law, or cestui que trust'-' or affecting other matters. 118 
 It will have been observed that Order LIV, A, covers the con- 
 struction of wills, deeds, contracts and other written instruments; 
 and the reports of the Chancery Division indicate that more than half 
 the declaratory judgments rendered arise in the construction of wills 
 or deeds of trust under this order. 119 The simplicity of the new pro- 
 cedure when contrasted with the old tedious and expensive litigation 
 which any dissatisfied member of a family could render necessary 
 may be envied by us. New Jersey appears to be the only State which 
 has directly profited by the English example in this respect, 120 
 although a few States permit bills to construe a will. 
 
 Since the "forms of action" have been abolished in England, and 
 a plaintiff needs now in his writ or pleadings merely to state the facts 
 on which he relies, the declaration of "rights" under Order XXV, 
 rule 5, and LIV, A, is obtainable without technicality and inex- 
 pensively. So successful in improving Ihe administration of justice 
 has the declaratory action been that Order XXV has been adopted 
 verbatim in the codes of procedure or rules of court of Australia, 
 New Zealand, Queensland, Victoria and other Australian states; 121 
 of Ontario, British Columbia, Manitoba and other Canadian 
 Provinces; and of India and Ceylon. 
 
 India. T n India, where the declaratory action has been extensively 
 used, Act VIII of 1859, section 15, embodied the provisions of section 
 
 Sea North Eastern Marine Engineering Co. v. Leeds Forge Co. [1906], 1 Ch. 324; (C. A.) [1906], 2 Ch. 498. 
 5 De Gasquet James v. Duke of Mecklenburg-Schwerin [1914], p., 53, 71. 
 
 7 Statutory Rules and Orders (1893), 552. 
 
 8 Order Ly , 7 Statutory Rules and Orders Revised, 126. 
 
 9 The originating summons is exceedingly simple. It reads, after the caption: 
 
 "Let B of in the county of within eight days after service of this summons on him, inclusive 
 
 of the day of such service, cause an appearance to be entered for him to this summons, which is issued upon 
 
 the application of A of in the county of who claims to be [state the nature of the claim] for the 
 
 determination of the following questions: [State the questions.] " 
 
 120 The New Jersey act respecting the Court of Chancery, suppl., approved Mar. 30, 1915, Public Laws 
 1915, ch. 116, p. 185, sec. 7, reads as follows: 
 
 " S'ibject to rules, any person claiming a right cognizable in a court of equity, under a deed, will or other 
 written instrument, may apply for the determination thereof, in so far as the same affects such right, and 
 for a da^laration of the rights of the persons interested." See In re Ungaro's Will (1917, N. J. Ch.). 102 
 Atl., 244. 
 
 121 In New South Wales they appear to have retained without change the form of section f,0 of the Chancery 
 Act of 1852.
 
 24 THE DECLAEATOEY JUDGMENT. 
 
 50 of the Chancery Act of 1852. This section was repealed by Chapter 
 VI of the Specific Relief act of 1877 (Act I of 1877, sec. 42) which, 
 while making it unnecessary for the plaintiff to be entitled to any 
 coercive relief, hence admitting the negative declaratory action, bars 
 the courts from making declaratory decrees only jn cases where the 
 plaintiff, being able to seek coercive relief, omits to request it. This 
 legislation, therefore, adopts the early construction of the German 
 supreme court and the present German practice requiring a plaintiff 
 to seek his strongest remedy, and overlooks the advantages which a 
 friendly suit enjoys over a hostile litigation in determining one's 
 legal position, in his valuable commentary on the Specific Relief Act, 
 Collett mentions m as the prerequisites of the declaratory decree: 
 1. There must be a present existing interest, however distant the 
 actual enjoyment may be; 2. There must be some present danger or 
 detriment to be averted by the declaration; and 3. A man entitled to 
 sue for an executory decree .can not seek only a declaratory decree. 123 
 Section 283 of the civil procedure code of 1882 also enables a person 
 claiming an interest in property attached under an execution of iudg- 
 
 i i i i ^i 
 
 ment to institute a suit to establish his interest in the property, which 
 suit acts as a stay of execution. A similar proceeding is provided in 
 Ceylon. 124 
 
 United States, While the declaratory judgment, eo nomine, has 
 not yet been adopted in the United States, it is proper to observe that 
 many of our States have without formal recognition admitted its 
 efficacy in various departments of the law. A careful search for 
 instances of its application would probably disclose many cases. But 
 its employment is spasmodic and desultory. The few examples that 
 we shall cite will serve merely to show that our special necessities have 
 occasioned recourse to the declaratory judgment without conscious 
 adoption, and that its f9rmal admission into our practice would be 
 merely an extension to a wider field of an institution whose efficacy 
 we have already admitted and which is even more thoroughly attested 
 by a prolonged practice of over thirty-five years in England and of 
 many more years in other countries. 
 
 Among the few instances that we shall notice in the United States, 
 the majority indicate the adaptability of the declaratory judgment to 
 the construction of written instruments and to the determination of 
 conflicting titles to real property. Attention has already been called 
 to the New Jersey statute of 1915, based on the English Order L1V, A, 
 according to which the chancery court may construe any will, deed, 
 or other written instrument without -giving further relief. 125 Illinois 
 and some other States also admit bills in chancery for the construction 
 of wills, notwithstanding that no trust or questions of trust or other 
 questions are involved therein. 126 
 
 122 Collett, The Law of Specific Relief in India (Calcutta, 1882), 224. 
 
 123 On the Indian practice in making declaratory decrees see 1 Stokes, Anglo-Indian Codes (Oxford, 1892), 
 934; Broughton, Notes of Cases decided upon points of Civil Procedure (Calcutta, 1884), 93; and Sarkar, The 
 Civil Procedure Code (Act XIV of 1882), sees. 11, 283, and the cases there digested. Under the proviso that 
 the executory decree must be claimed if feasible, the court will not deny the declaratory action unless 
 " satisfied bevond all doubt" that the pluntiif ought to seek "further relief and yet has not done so." Aisa 
 Siddika v. Bidhu Sekhar Banerjee (1913), 17 Calcutta L. I., 675. 
 
 12 < 1 Pereira, Institutes of the Laws of Ceylon (Colombo, 1901), 339. Such a proceeding in the form of trial 
 of title by shsril's jury is fairly common in the Uniled States. The purpose, however, is to protect the 
 shsriT. See Sellers v. Thomas (1900), 185 111. 384 and Puterbaugh, Common Law Pleading and Practice 
 (9th ed.), 1127. 
 
 12& Public Laws 191C, ch. 116, ssc. 7, p. 185. In re Ungaro's Will (1917, N. J. Ch.), 102 Atl., 244. In this 
 section the declaratory judgment, as such, is expressly recognized. 
 
 126 rluri's IllLiois Statutes, 1911, c. 22 (Cflincsry), sec. 50, p. 166. See Barton v. Barton (1918, 111.), 119 
 N. E., 320.
 
 THE DECLAEATORY JUDGMENT. 25 
 
 The declaratory judgment in substance, although not in name, has 
 proved particularly effective for the determination of disputed or 
 doubtful questions of title to realty. In England and some other 
 countries, since the abolition of real actions, this has become the 
 regular method of trying title. We have long been familiar with the 
 equitable action for the removal of a cloud from title; and this action, 
 so far as it does not demand the destruction of instruments or of other 
 obstructing clouds, but merely a declaration of the plaintiff's title, 
 is in effect a declaratory action. But the artificial restrictions with 
 which this equitable remedy is encumbered have led to the enactment 
 of statutes which remove many of these limitations: and some of them 
 permit not merely a person in possession but any claimant of an 
 equitable or a legal interest in the land (and in some States even in 
 personal property) to institute an action for the trial of the title. 127 
 Thus, a recent Connecticut statute provides: 
 
 An action may be brought by any person claiming * * * an interest in * * * 
 real or personal property * * * against any person who may claim * * * any 
 interest * * * adverse to the plaintiff * * * for the purpose of determining 
 such adverse * * * interest * * - * and to clear up all doubts and disputes, 
 and to quiet and settle the title to the same. 128 
 
 Somewhat analogous to these actions are the proceedings by a 
 person in possession for the statutory period against a person claim- 
 ing under a record title to have the latter's claim declared void and- 
 to confiim his own title. 129 
 
 Our law is also familiar with the action by which an equitable 
 claimant can obtain a judgment impressing a trust upon the legal 
 title in his favor i. e., a judgment declaring the plaintiff to be cestui, 
 and therefore entitled in equity to property to which another has legal 
 title; 130 or a judgment declaring a supposed trust to be invalid. 131 In 
 fact, actions are frequent for the declaration of the nullity of instru- 
 ments or transactions, although such declarations are usually inci- 
 dental to further relief. 132 When brought by prospective legal 
 defendants to anticipate their defenses under void or voidable instri- 
 ments they are declaratory actions. In this category are act ons by 
 insurance companies to declare the invalidity of policies obtained by 
 fraud, sometimes before any loss has occurred; or by those prospec- 
 tivoly liable under negotiable instruments. 133 On the whole, the 
 courts are reluctant to make such declarations, and only in excep- 
 
 127 The statutes are cited in 6 Pomeroy, Equity Jurisprudence (3d ed.) sec. 735. See also Wehrman v. 
 Conklin (1894), 155 U. S., 314, 15 Sup. Ct., 129. 
 
 128 Pub. Acts, 1915, ch. 174, sec. 1. See Ackerman v. Union & New Haven Trust Co. (1915), 90 Conn., 
 63; 96 Atl., 149; (1917), 91 Conn. ,500, 506; 100 Atl.,22, whore the court, Case. .1., was most reluctant in 
 admitting the fact that this statute was in effect analogous to the English Order XXV, rule 5. The case 
 involved the construction of a will. See also Heaver . Napier (1918, Minn.), 166 N. W.. 187; Coel . Glos 
 (1908), 232 111., 142; 83 N. E., 523 action by vendee under a contract of sale against a third person claimant 
 of title. 
 
 129 See the cases cited in 6 Pomeroy, op. cit. sec. 730, n. 17. In many States such actions can not be brought. 
 They can not be brought in Canada. Miller v. Robertson (1904), 35 Can. Sup. Ct., 80; Reaume' v. CotS 
 (1916, A. D.), 35 Ont. L. Rep., 303. Equitable actions to establish and confirm title in case of lost records 
 and under other circumstances are admitted in Wisconsin, Laws of 1878, ch. 252, Statutes, 1911, sec. 661 h; 
 and in Illinois, Hurd's Statutes, 1911, ch. 22, p. 167. 
 
 i'-o Uonohoe v. Rogers (1914), 168 Cal., 700: 144 Pac., 958. See the interesting case of Porten v. Peterson 
 (1918, Minn.), 166 N. W., 183, where a vendee not yet entitled to specific performance because all the 
 installments of the purchase price had not yet been paid, the defendant vendor having repudiated the 
 contract by refusing to receive further installments, nevertheless obtained a judgment declaring his equit- 
 able title. 
 
 Scheibner v. Schoibncr (1917, Mich.), 165 N. W., 660. 
 
 '> 2 See the case of Slingerland v. Slingerland (1910), 109 Minn., 407. 410, 411; 124 N. W., 19, where a woman 
 sued for a declaration that a contract with her husband for the release of her dower was void because ob- 
 tained by fraud. The action was held not premature. 
 
 133 Commercial Mutual Life Insurance Co. v. McLoon (1867, Mass.), 14 Allen, 351; Globe Mutual Life 
 Insurance Co. v. Reals (1879), 79 N. Y., 202; see also the English cases of Brooking v. Maudslay, Son & 
 Field (1888), 38 Ch. D., 636, and Honour v. Equitable Life Ass. Soc. [1900], 1 Ch., 852, in which the declara- 
 tions were refused.
 
 26 THE DECLARATORY JUDGMENT. 
 
 tional cases will they relieve the petitioner by anticipation from the 
 usual duty of setting up his legal defenses when sued. 134 
 By a Wisconsin statute 
 
 when the validity of any marriage shall be denied or doubted by either of the parties, 
 the other party may commence an action to affirm the marriage, and the judgment in 
 such action shall declare such marriage valid or annul the same and be conclusive 
 upon all persons concerned. 135 
 
 So far as this judgment declares the validity of a marriage, it is purely 
 declaratory, and its purpose the exact opposite of the old English 
 "jactitation" proceeding. So far as it declares the marriage null, pro- 
 vided it was merely voidable and not void ab.initio, it is not purely 
 declaratory but rather investitive, or, more accurately, divestitive in 
 its nature. 
 
 Other illustrations are to be found in statutes authorizing judg- 
 ments proving the tenor of lost instruments or proving the validity, 
 when contested, of instruments to be recorded. 138 Judgments declar- 
 ing statutes unconstitutional are declaratory, though they are usually 
 accompanied by some specific relief, and the classic example of the 
 trustee's request for advice and directions under a trust instrument is 
 illustrative of this form of action. The examples given above will 
 suffice to show that the formal adoption of the declaratory judgment 
 in our practice, far from constituting a radical innovation in our legal 
 institutions, would merely serve to extend the application of remedies 
 already employed. 
 
 II. 
 
 It is now our purpose to undertake an analysis of numerous declar- 
 atory actions and judgments, with a view to determine the scope of 
 and the limitations upon this useful form of procedure. An exami- 
 nation of declaratory judgments in the various jurisdictions in which 
 the institution has been adopted reveals a remarkable similarity of 
 fundamental principles characterizing the practice of making judicial 
 declarations. As our interest is confined to the practice, emphasis 
 will be laid not upon the decision itself as a matter of substantive 
 law, but rather upon the type of question submitted for declaratory 
 judgment, the cases in which such judgments are rendered, and the 
 limitations placed by the courts upon the exercise of the power to 
 make declarations 01 rights and of other jural. relations. 
 
 COMBINATION OF ACTIONS. 
 
 It has already been noted that under the practice in England it is 
 usual to combine with the request for a declaration a request for an 
 injunction or for damages where coercive relief is obtainable and 
 desired. Under the act of 1852, this was the only kind of case in 
 which a declaration could be made, although the plaintiff was not 
 required to ask for coercive relief. Under the rules of 1883, however, 
 the limitation that coercive relief must be obtainable has been re- 
 
 13 < These actions are in \eflect requests for negative declarations. An instance of a prospective legal 
 defendant instituting a proceeding to compel the prospective plaintiff to sue is afforded by the unusual 
 statute of New Mexico of March 11, 1903. ch. 23, sec. 2, which enables a corporation, anticipating a suit 
 against it by a person who has sustained a personal injury, to compel that person to file his complaint. 
 So, in prize law, the owner of a captured vessel or goods can compel the captor to institute prize proceed- 
 ings. The Zamora (H. L.) [1916], 2 A. C.. 77. 
 
 155 Wisconsin Statutes, sec. 3Z52. See Kitzman v. Kitzman et al. (1918, Minn.), 166 N. W., 792. 
 
 E. g., California Statutes 1905, p. 604; Civil Code, sec. 1203.
 
 THE DECLARATORY JUDGMENT. 27 
 
 moved, so that declaratory actions may now be instituted in which 
 no injunction or damages could be obtained. 
 
 Yet there is a decided advantage in combining the request for 
 coercive relief, when desired, with a request for a declaration. It 
 may easily happen, for example, that the injunction requested is not 
 granted on the merits; and in our American practice the bill would 
 then be dismissed with costs, for the denial 01 the injunction leaves 
 no alternative. In the English and Scotch practice, however, the 
 additional request for a declaration does leave an alternative, and it 
 is constantly employed by the courts. By declaring what are the 
 jural relations of the parties, the necessity for further litigation is 
 usually obviated and all the purposes of coercive relief will have been 
 served. For example, the P. & O. Steamship Co. brought an action 
 for a declaration and injunction against a dock company to have 
 declared illegal and to enjoin the enforcement of certain regulations 
 and charges in respect to certain docks which the steamship company 
 might at some time need. The steamship company during the trial 
 evidently decided to abandon the prayer for the injunction, but the 
 proceedings continued and the court made a declaration, as requested, 
 that the regulations were illegal; and this declaration served all the 
 purposes of the steamship company. 137 So the court may, in the 
 exercise of its equitable discretion, refuse an injunction where it be- 
 lieves the interests of justice do not require it, and grant a requested 
 declaration in its stead. Thus, in a case where the sewer of a munic- 
 ipal corporation emptied into that of another under an agreement 
 held ultra vires, the court considered the great inconvenience of 
 suddenly .closing a sewer in daily use and refused the injunction, but 
 declared the plaintiff's right to relief with leave to apply for an in- 
 junction after a reasonable time, should the defendants fail to make 
 other arrangements. 138 In another case, while declaring a certain act 
 a trespass, the court refused to enjoin it as too trival for an injunc- 
 tion. 139 The request for a declaration may also be used, alone or 
 with a prayer for further relief, in a counterclaim. 
 
 The practice mentioned above of requesting a declaration as an 
 alternative remedy is explained by the fact that if not claimed, it 
 will not as a rule be granted. There is, therefore, much to gain and 
 nothing to lose by asking it. In one important case, an exception to 
 the general rule, a declaration was made although not requested. 140 
 In this case a mining company had by its negligence caused the water 
 in a canal to become polluted and to subside to such an extent that 
 an adjoining mill owner was damaged by the escape of water into his 
 mill. Inasmuch as certain remedial procedure had been provided for 
 by statute, the court refused an injunction but put its finding in the 
 form of a declaration of the defendant's liability for the damage 
 caused, both present and future. Nor will a court, as a rule, make 
 a declaration different from the one requested. The declaratory 
 judgment is not an equitable remedy 141 which the courts can adjust 
 or grant conditionally according to the " equities" to the justice of 
 
 137 London Assn. of Shipowners, etc. v. London & India Docks, etc. (C. A.) [1892], 3 Ch., 242. See also 
 Attv. Gen. v. Merthyr Tydfll Union (C. A.) [1900], 1 Ch., fc!6. 
 
 M Islington Vestry P. Hornsey U. C. (C. A.) [1900], 1 Ch., 695. See also Grainger v. Order of Canadian 
 Home Circles (1914), 31 Ont. T,. Rep., 461. 
 
 '^ Llandudno U. D. C. P. Woods [1899], 2 Ch., 705. 
 
 no Evans v. Man ' 
 
 i See Farwell, 
 
 U. D. C. P. Woods [1899], 2 Ch., 705. 
 
 anchester, Sheffield <t I i-'eolnshire R. R. (1RS7) .36 Ch. D., 626. 
 l, L. J., in Chapman v. Michaelson (C. A.) [1909], 1 Ch., 238, 243.
 
 28 THE DECLARATORY JUDGMENT. 
 
 the case. 142 Unless put in the form of a general question on originat- 
 ing summons for the court's determination, it is either categorically 
 granted or refused. A complaint, therefore, frequently contains a 
 request for several declarations, some of which may be granted and 
 others refused. The Indian courts, while putting these rules into 
 practice, 143 have claimed the privilege of altering a declaration re- 
 quested to suit the circumstances. 144 
 
 It will be recalled that under the Indian specific relief act, 1877, 
 a declaration can not be granted in a case in which the plaintiff could 
 have requested further relief by way of injunction, 145 damages, or 
 claim to recover possession of property. 148 This resembles the practice 
 of the German supreme court and is of interest as representing the 
 antithesis of the former English practice under the act of 1852, this 
 being the only kind of case in which a declaration could be made. 
 
 While the German practice now admits in principle the possibility 
 of combining the declaratory with the executory action, the fact is 
 that this is done only when by the declaratory action a distinct end 
 is to be achieved; for example, in cases of continuing injury, the 
 plaintiff may seek damages for the injury that has occurred and a 
 declaration of liability for the injury that may occur in the future ; 147 
 or a plaintiff may sue for a declaration of the defendant's liability 
 (technically, duty), although the injury is complete, if he is unable at 
 the moment accurately to estimate his damages. 148 Yet it is the rule 
 that when the executory action is feasible, a plaintiff will not be 
 allowed to combine it with a declaratory action, nor indeed does he 
 in practice sue for a declaration at all. In such cases, the courts have 
 said that the plaintiff had no ' 'legal interest " in the declaration. Cer- 
 tain exceptions to this rule have been made in the case of the admin- 
 istration of estates or where a defendant has avowed his willingness to 
 abide by and carry out a declaratory judgment. But such cases are 
 exceptional, and the necessity for exception diminishes in view of the 
 valuable procedure for obtaining an executory judgment to cover obli- 
 gations accruing in the future provided by sections 257-259 of the 
 German code of civil procedure enacted in 1898. This action for 
 future performance (kiinf tige Leistung) is possible when the plaintiff's 
 claim is based on an executed contract or transaction in which the 
 plaintiff, but not the defendant, has fully performed. It covers 
 actions : 
 
 1. For money loaned due at a future date. 
 
 2. For the surrender of a leasehold estate or of a chattel at the 
 termination of the lease or term of hiring. 
 
 3. For installments of payments [or other acts] falling due at 
 periodic times in the future, provided judgment has been obtained 
 on an installment already past due. 
 
 4. Where the debtor without justification or claim of right shows 
 that he intends to evade or refuse performance when due. 149 
 
 142 A possible exception may be found in the ease of Honour v. Equitable Life Ass. Soc. [1900], 1 Ch., 852, 
 in which the declaration was refused on the defendants undertaking not to avail themselves of a certain 
 defense, although it is not at all clear that the court made this a condition. 
 
 i Nobin f. Nilkamal (1916), 25 Calcutta L.J., 537, 545; Hemendraw.Upendra(1915), 431. L.R., Calcutta, 
 743, 766. 
 
 Abhoy v. Kelly (1880), 5 1. L. R., Calcutta, 949. 
 
 Nauji v. Umatul (1912), 15 Calcutta L. J.. 724. See ajso supra, p. 29. 
 
 < 6 Jibunti v. Shibnath (1883), 8 I. L. R., Calcutta, 819. 
 
 (1889), 23 R. G., 346, 348: (1898), 41 R. G., 369, 372. 
 
 48 Gaupp-Stein, op. cit. 613, n. 100. Indeed, in such cases the declaratory action must be Drought if 
 the plaintifi wishes to stop the running of the statute of limitations. (1913), 83 R. G., 358. 
 
 us Hellwig, op. cit., sec. 103a, pp. 267-269. Petersen, op. cit., 506-507.
 
 THE DECLAKATOKY JUDGMENT. 29 
 
 The judgment obtained in such cases may be executed when the 
 obligation falls due. These are declaratory judgments only in the 
 sense that they can not be executed when rendered, for they are execu- 
 table without further proceedings on the arrival of the due day. 
 Case 4 differs from the pure declaratory judgment not only in this 
 respect, but because it requires an unjustified or malicious repudiation ; 
 if founded upon a claim of "right," only a declaratory judgment with- 
 out executory force would be obtainable. Our action for anticipatory 
 breach would probably cover most of the cases under division 4. 
 Prior to 1898, the obligation being not yet due and therefore no execu- 
 tory action being possible, such actions had to be directed toward a 
 declaratory judgment. 
 
 The German practice then seems to be that when an executory 
 action would give a complete remedy, the declaratory action can not 
 be brought. 150 But this, as we have seen, is confined to those cases 
 where the declaration is necessarily involved in the executory judg- 
 ment, and pursues no independent end. Thus, in a suit for a declara- 
 tion that a contract for the sale of land in Southwest Africa was 
 void because of noncompliance with formal requirements, combined 
 with a demand for the return of the purchase price, it was held that 
 under the circumstances the demand for the declaration was inde- 
 pendent and not necessarily involved in the demand for restitution of 
 the money and could be maintained. 151 
 
 A declaratory action may during the course of the proceedings 
 merge into an executory action, either by the complete accrual of the 
 title to such an action or by the proceeding of the defendant. Indeed, 
 the code specifically admits an amendment in the form of the action; 
 or rather, more accurately, an amendment in the prayer for judg- 
 ment. 152 In a recent interesting case, the plaintiff put on the market a 
 patented washing powder. The defendant in using it sustained severe 
 injury to her eyes, and threatened plaintiff with suit. The plaintiff 
 thereupon brought a negative form of declaratory action to establish 
 her nonliability (technically nonduty to pay, i. e., privilege) for 
 defendant's injuries. During the pendency of this declaratory action, 
 defendant sued for damages. The court held that the executory ac- 
 tion for damages merged the claim for a declaration, and while the 
 "lee-al interest" in the declaration was present when the action was 
 instituted, it was not present at the time of judgment, when it was 
 
 necessary. 153 
 
 PURPOSE. 
 
 The purpose of the declaratory action is the security desired by the 
 plaintiff against the uncertainty of his rights and other jural relations 
 due to their being questioned by the defendant or to the assertion of 
 conflicting claims, or merely to the existence of records ostensibly to 
 the advantage of the defendant which of themselves place in uncer- 
 tainty the plaintiff's legal position. There need be no threat to violate 
 the plaintiff's rights, etc.; 154 the mere proof ol those operative facts 
 
 I" (1905), 01 R. G., 242, 244. 
 
 s (1910), 73 R. G., 272. 
 
 > (1W) 71 R. O., 72. So defenses may be changed: (1909) 72 R. G., 143. 
 
 lft3 (1909) 71 R. G., 68. It is sufficient, if present at the true of judgment, even if not present when the 
 action was initiated. Warneyer, Rechtsprechung des Reirhspenchts (1909) p. 295, No. 325. But see 
 Hoffman v. McCloy (1917), 38 Out. L. Rep., 440, 450, to the effect that it must te present when the action is 
 instituted. 
 
 i* See Hopkinson v. Mortimer, Harley & Co. (Ltd.) [1917], 1 Ch., 646. But the right, privilege, etc., 
 must he in some danger of attack. Toronto Ry. Co. v. City of Toronto (1906), 13 Ont. L. Rep., 532 .
 
 30 THE DECLARATORY JUDGMENT. 
 
 which either of themselves or in the hands of the defendant endanger 
 the security of the plaintiff's rights, etc., suffices. It is for the court 
 to determine whether the dispute, danger, or uncertainty was of such 
 a nature, either by reason of its source or its extent, as to justify the 
 making of the declaration asked. Some danger to the plaintiff's 
 rights, etc., must exist, and as may be inferred, the danger or threat 
 of attack must move either from the defendant or from records within 
 his control or by which he is ostensibly benefited. Mention has been 
 made of Justice Bailhache's remark that the declaratory judgment is 
 not intended merely to enable persons to "sleep o'nights, and it has 
 been said on more than one occasion that the courts will not confirm 
 by declaration a title which is perfectly clear and not yet attacked. 155 
 In other words, it is not the function of the declaratory judgment to 
 establish truisms that no one disputes. 
 
 As a measure of preventive justice, the declaratory judgment 
 probably has its greatest efficacy. It is designed to enable parties to 
 ascertain and establish their legal relations, so as to conduct them- 
 selves accordingly, and thus to avoid the necessity of future litigation. 
 
 It is further designed to enable trustees, executors, receivers, and 
 others who act hi a fiduciary capacity and whose proper execution of 
 such trusts is a matter of public as well as private interest, to obtain 
 authoritative advice and guidance in the performance of their duties. 156 
 Recently in England, the controller of enemy property under the 
 trading with the enemy acts, 1914-1916, has been authorized to ask 
 the court for advice as to how he is to deal with creditors of the con- 
 cerns under his control, how to distribute the assets in liquidation, and 
 what his duties are in particular cases. 157 Somewhat related to this 
 function of courts is the duty occasionally created by statute of 
 answering stated questions for the benefit of administrative officers. 158 
 The opinions given by the Court of Claims for the benefit of executive 
 officers and of the supreme courts in some seven of our States for the 
 benefit of the legislature or governor on "important questions of 
 law" or of "constitutional law" 159 bear some resemblance to declara- 
 
 IM Earl of Galloway v. Garlies (1838), 16 S., 1212; Magistrates of Edinburgh v. Warrender (18C3), 1 M., 
 887; Earl of Dysart v. Hammerton [1914], 1 Ch. 822; (II. L.) [1916] 1 A. C., 57. 
 
 118 For trustees in England. seeTrustee Act, 1893, sees. 25, 35, 38. and Order LV, rule 3, of the Supreme Court 
 Rules; In re Moxon [19101. 2 Ch., 595; Re Hollins (1917, Ch.), 118 L. T., 1C; In re Forster (1917, N. S. W.), 17 
 St. Rep., 42. Executors, in re Saillard [1917] 2 Ch. 140; Receivers, in re. New Chinese Antimony Co. (Ltd.) 
 [1910] 2 Ch. 115; Williams v. Dominion Trust Co. (1916) 23 Br. Col. 461. Whenever persons are officers of 
 the court, like receivers, they may in all jurisdictions ask for directions. The direction given is not merely 
 advisory, but a binding judgment. 
 
 In re W. Ilagclberg Akt. G. [191C] 2 Ch. 503; in re Fr. Meyers Sohn (Ltd.) (C. A.) [1918] 1 Ch. 169; in 
 re Dieckmann [1918] 1 Ch. 331; Re Francke and Rasch (1918, Ch.) 118 L. T. 211. 
 
 1; * Thus, the registrar of titles in New South Wales can ask the Supreme Court for an opinion under sec. 23 
 of the Real Property Act of!900. No. 25, as to which of two persons is entitled to priority of registration. See 
 in re Broughton (1917, N. S. W.) 17 St. Rep. 29; The Minister of Lands v. Yates (1917, N. S. W.) ibid. 114. 
 See also, section 113 of the Alberta Land Titles Act. In Scotland, municipal authorities have asked a 
 declaration of their jurisdiction under a Crown charter. Magistrates of Edinburgh v. Officers of State (1825) 
 4 S. 319. Judge Cardozo of the New York Court of Appeals in Sell-Insurer's Association and N. Y. Central 
 R. R. Co. v. State Industrial Commission, decided May 28. 1918 (119 N. E. 1027), considered this a nonjudicial 
 duty which the legislature has no power to impose on the courts. He held that the legislature by providing 
 that the State industrial commission might certify to the Appellate Division "questions of law 'involved in 
 its decisions," intended only such questions as we're involved in an actual controversy with adverse parties 
 litigant, not questions which the commission might formulate with a view of being enlightened with respect 
 to its powers. This limits the declaration to the determination of questions of law certified to appellate 
 courts by inferior tribunals, a very common practice. In the recent case of Dreiser t>. John Lane Co. (1918, 
 N. Y. A pp. Div.), 171 N. Y., Sup.', 605, the appellate division reaffirmed the court's incompetence to render 
 advisory opinions to private pirties, rwrticularlv on a question of fact. 
 
 Such a provision is to be found in the constitutions^ Massachusetts, New Hampshire, Maine, Rhode 
 Island, Florida, Colorado, and South Dakota: also in statutes of Canada.and its Provinces. See an exhaus- 
 tive study on advisory opinions by Albert R. Kllin^wood of Colorado College, published recently (New 
 York, 1918), undsr the title Departmsntal Cooperation in State Government; and Thayer, Legal Essays 
 (Boston, 19881, 42 et seq., Hall, Cases on Constitutional Law (St. Paul, 1913), 44-45, and authorities cited 
 in Judge Cardozo's opinion, supra note 158.
 
 THE DECLARATORY JUDGMENT. 31 
 
 tory judgments, but embody the important qualification that they are 
 merely advisory in their nature and are in no sense binding judgments. 
 
 The purpose for which a declaration is desired is one of the con- 
 siderations entering into the exercise of the court's discretion in ren- 
 dering a declaratory judgment. The equitable nature of the relief 160 , 
 is evident in the fact that the court may inquire into the purpose for 
 which the declaration is asked, and must be convinced that its judg- 
 ment will serve a practical end in quieting or stabilizing uncertain 
 or disputed jural relations either as to present obligations or prospec- 
 tively. 161 Thus, if the purpose of the action is merely to get a court's 
 opinion on a hypothetical question which is not disputed or which 
 requires no determination in order to settle uncertain relations or con- 
 flicting claims, no declaration will be made. 102 The German Supreme 
 Court has expressed this idea by saying that the courts were not 
 intended for the legal instruction of parties on abstract or doubtful 
 questions of law or on general legal principles in which the parties had 
 no present practical interest for the adjustment of their relations. 163 
 But this limitation has been carried quite far, so that declarations have 
 been denied even when the parties had a certain interest in questions 
 concerning the validity of an ordinance, the ^xistence of a custom, the 
 scope and intent of an administrative rule concerning particular kinds 
 of business, the principles according to which an account should be 
 balanced, etc. 164 In other words, the declaration in Germany is con- 
 fined to a very concrete point, and should it require the determimation 
 of a broad question, e. g., the validity of an ordinance, the declaration 
 may be declined on the ground that the party had not a sufficient 
 "legal interest." Indeed, it is somewhat difficult to systematize the 
 cases in which a declaratory judgment may be obtained in Germany, 
 because of the fact that in many cases in which declarations are denied 
 in the exercise of the court's discretion, the ground alleged is that the 
 party had no "legal interest" in the declaration, although his practical 
 interest is obvious. 
 
 One well-recognized purpose of the declaratory action in Germany 
 is to stop the running of the statute of limitations, and indeed in cer- 
 tain cases where the action for damages could not be brought because 
 of lack of information to establish the damage, the preliminary decla- 
 ratory action to establish the liability 'has been held essential to inter- 
 rupt the running of the statute. 165 
 
 In England, declaratory judgments have been rendered for the 
 information of a foreign court on a question of English law or where 
 
 1W Although Farwell, L. J., in Chapman v. Michaelson (C. A.) [1909], 1 Ch., 238, 243, denied that it was 
 strictly "equitable relief." 
 
 161 So the Ontario Supreme Court refused to declare a licensing ordinance invalid, because before the 
 time came for the issue of another set of licenses, a new ordinance might have been passed. Bourgon v. 
 Township of Cumberland (1910), 22 Ont. L. Rep., 256. So no declaration was made on a question of the 
 construction of a deed where, whichever way it was decided, it would necessarily not help to put an end to 
 the litigation. Lewis v. Green [1905], 2Ch.,340. The declaration was refused in Earl of Dysartw. Hammer- 
 ton (1914), 30 T. L. R., 379, because its effect would have been nugatorv. A party is "not entitled to an 
 opinion on a speculative or academic question." Societe" Maritime v. Venus Steam Shipping Co. (Ltd.) 
 (1904), 9 Com. Gas., 289. 
 
 162 Hampton v. Holman (1877), 5 Ch. D., 183; Magistrates of Edinburgh v. Warrender (1863, Scot.), 1 M. 
 887. Declaration not made where it would have no practical utility, as the jurisdiction in such cases was 
 vested in another court. Barraclough v. Brown [1897], A. 0. 615, 623. See also Faber v. Gosworth U. C. 
 (1903, Ch.), 88 L. T., 549, where declaration was declined, inasmuch as nothing had been done under cer- 
 tain building plans and it was impossible to tell what the consequences of the declaration asked might be. 
 
 >< (1900) Juristisehe Wochcnschrift, 70 (~R. G., Dec. 15, 1899). 
 
 1S < (1910) 73 R. G., 82, 87; Hellwig, op. cit., 281. 
 
 "* (1913) 83 R. G., 358, and the cases cited in that opinion. The court stated that this is frequently 
 necessary in tort cases where the damages can not be established for some years. See also (1905) 61 R. G., 
 164, 169.
 
 32 THE DECLARATORY JUDGMENT. 
 
 the party with the approval of the court intends to use the judgment 
 in another proceeding. 166 
 
 Inasmucn as the declaratory judgment is designed to settle legal 
 relations that are disputed or endangered by the defendant's manifest 
 ability to threaten them, the declaration will not be made by con- 
 sent. 167 This is expressly provided for in the Ontario marriage act, 
 by which the court may under certain circumstances declare mar- 
 riages void. The French have a well-established procedure of con- 
 sent judgments based on simulated litigation, called judgments 
 d'expedient, which are designed to give judicial authentication to an 
 agreement of the parties. 168 
 
 It is proper here to advert to the fact that while the declaration of 
 one certain jural relation may be sought, its purpose may be more 
 far-reaching. Thus, a negative declaration to establish that certain 
 persons were not members of a certain club was really intended to 
 establish their freedom from the duty of paying the debts of the club, 
 which had become insolvent (i. e., a declaration of privilege). 169 So a 
 declaration of the defendant's no right to walk over land in the plain- 
 tiff's possession, i. e., no easement, may be designed to establish the 
 totality of jural relations involved in ownership, just as the old action 
 of ejectment was really an action to try title, not merely possession. 
 
 DECLARATION DISCRETIONARY. 
 
 It has already been noted that the making of a judicial declaration 
 in a declaratory action is discretionary with the court. Of that there 
 is little doubt. Chitty, J., in Austen v. Collins 17 expressed the follow- 
 ing much-quoted dictum: 
 
 The rule leaves it to the discretion of the court to pronounce a declaratory judgment 
 when necessary, and it is a power which must be exercised with great care and 
 jealousy. 
 
 That formula has traveled to the ends of the world, to Australia, 
 to India, to Ontario, to British Columbia, and to the State of Connect- 
 icut; 171 and like most formulas, which are frequently used to avoid the 
 necessity of thought and analysis, it has enabled courts to refuse a 
 declaratory judgment when they could not justify their action on 
 some better ground. While admitting the principle of discretion, it 
 is our purpose to determine to what extent the exercise of that 
 discretion has been hardened into rule. 
 
 It has already been noted that a declaratory judgment will not be 
 rendered unless the courts believe that it will serve some present 
 practical purpose. 
 
 It is a universal rule that a court will not render a declaratory 
 judgment where it has no jurisdiction of the case, either by reason 
 of subject-matter, 172 or because jurisdiction has been expressly con- 
 
 ' M Hope v. Hope (1854), 4 be G. M. & G., 328; The Manar (1903), 89 L. T., 218: Guaranty Trust Co. t>. 
 Hannay (C. A.) [1915], 2 K. B., 535. The German courts also reco?nize this purpose as a justification: 
 Hell>vi<j, on. cit.,285, notec. But in one case whore the declaration was asked in order to use it as a founda- 
 tion of a suit for damages it was refused, because it would not have enabled plaintiff to recover if he had it. 
 Earl of O vsart v. Hamnurton (19141, 30 T. L. R., 379; see also Cornish v. Boles (1914), 31 Ont. L. Rep., 524. 
 
 '' Williams v. Powell (1894), W. N. 141. 
 
 ! Glasson, op. cit. 511, traces this proceeding back to an ordinance of Charles VIII of 1425. It is analogous 
 to the Roman jure in cessio proceeding. 
 
 > (1882) 8 R. G., 3. 
 
 l: (1886) 54 L. T., 903. 
 
 i" See Ackerman v. Union & New Haven Trust Co. (1917), 91 Conn., 500, 507. 
 
 ln Declaration sought in England that plaintiffs were lawfully in occupation of land in South Africa, 
 as incidental to suit for injuncli >n and damages. Held, that the court was without jurisdiction: British 
 South Africa Co. v. Companhia de Mocambiiue (H. L.) [1893], A. C., 602. Suit brought after expiration 
 3f statute of limitations: Bishambhar v. Nadiar (1914), 18 Calcutta L. J., 671.
 
 THE DECLARATORY JUDGMENT. 33 
 
 fided by statute to some special tribunal; 173 or the court may refuse 
 to exercise jurisdiction because the law has provided another 
 remedy. 174 Frequently the court has reached the conclusion that, 
 while it might have exercised its power to make a declaration, it 
 would be more expedient to try the action in some other form. This 
 applies particularly to those cases in which the court is asked to 
 declare the invalidity of a tax law or of an assessment under such 
 law, in which cases the courts have held that the claimant could 
 adequately try the question in a defense against enforcement pro- 
 ceedings. 175 A similar conclusion is often reached in the case of 
 negative declaratory actions in which the plaintiff wishes to antici- 
 pate his legal defense by moving as actor to have the court declare 
 the invalidity of a written instrument, e. g., an insurance policy, on 
 some alleged ground of defense which renders it void. Here the 
 courts have frequently said: "Wait until you are sued and then 
 raise your defense." 176 But where the declaration or a regular action 
 is optional, the courts now usually give the plaintiff his choice. The 
 attitude has changed from one 01 extreme conservatism in the issue 
 of a declaration to one of enlightened recognition of its value, and, 
 if the cases of the last few years are any criterion, obstacles to its 
 issue are now, where feasible, avoided ratner than sought. 
 
 DECLARATIONS OF FACT. 
 
 The general principle which appears to have been adopted is that 
 the courts will not make declarations of a fact, but only of a jural 
 relation. Exceptions to this rule have been infrequent; yet it is 
 difficult to conceive why the rule should impair very seriously the 
 institution of declaratory actions, inasmuch as it would seem feasible 
 to convert the request for the declaration of an operative fact into a 
 request for the declaration of a jural relation. Thus in Germany, 
 where the courts are exceedingly technical in this matter, a plaintiff 
 who wished to establish that he was not the father of a certain child 
 sought a declaration that he had not physically cohabited with its 
 mother during the period of gestation. The declaration was denied, 
 on the ground that he sought the declaration of a fact and not of a 
 legal relation. 177 Had he sought to establish that he was not the 
 child's father, the action would probably have been allowed, although 
 it would have turned on the establishment of the fact alleged. So 
 
 Barraclough t>. Brown [18971, A. C.. 615. 623; Grand Junction Waterworks Co. v. Hamrton U. D. C. 
 1898], 2 Ch., 331; Bull v. Atty. Gen. of N. S. Wales [1916], A. C., 564. Exemption from military service. 
 Flint v. Atty. Gen. [1918], 1 Ch., 216; Scotland: Balfour t;. Malcolm (1842), 1 Bell. 153; Leith Police ( omn;is- 
 sioners v. Campbell (1866), 5 M.. 247; N. Y. & Ottawa Ry. Co. v. Township of Cornwall (1913), 29 Ont. L. 
 Rep., 522 (statute gave to Board of Assessment jurisdiction over petition for exemption of certain pro) erty 
 from taxation); Mutrie v. Alexander (1911), 23 Ont. L. Rep., 396, 401. But see Evans v. Manchester, etc., 
 R. R, (1887), 36 Ch. D., 62o. 
 
 Co. . 
 
 N. /,.)', 19 S 1 . C.,112. See also (Oct. 18, 1880/R. G.) in Bahr, op. cit., 143. In Australia, the court has declined 
 to render a declaratory decree in a case where it would have been unable to make it ellective by further 
 coercive relief: Bruce v. commonwealth Trademark Label Assn. (1907), 4 C. L. R., 156. But see Lautour 
 v. Atty. Gen. (1865. C. A.), 5 N. R., 102, 231. 
 ' Toronto Ry. Co. v. City of Toronto (1906), 13 Ont. L. Rep., 532; Ottawa Y. M. C. A. v. Ottawa (1913, 
 
 remedy in a regular actio 
 
 "i Brooking v. Maudslay, Hon"& i-ield (18S8) 38 Ch. D. 636, Honour v. Equitable Life Ass. Soc. [1900], 
 1 Ch., 852, 854, and supra, note 133 for American cases. 
 "'(Oct. 18, 1880, R. G.), Bahr, Entscheidungen, 143. 
 
 10790819 3
 
 34 THE DECLAEATCHY JUDGMENT. 
 
 other declaratory actions of this kind have been dismissed in Germany 
 where they were directed to establish a man's religion, capacity to 
 earn a living/ 78 the condition or quality of an article, 179 a trade 
 custom, 180 or the actual boundaries of a sales district. 181 In all these 
 cases the German Supreme Court put its denial of a declaration on 
 the ground that the code only authorized the declaration of legal 
 relations, not of facts, with the one exception of the establishment of 
 the genuine or fraudulent character of a legal instrument. 
 
 The English courts adopt the same view. In the above cases it 
 would have been possible to have these facts determined, provided 
 they were operative facts producing a particular jural relation, by 
 placing in issue the jural relation instead of the operative fact alone. 
 This is done constantly in the English courts in the making of 
 declaratory judgments, and the declarations requested frequently 
 embody a syllogistic form leading up from operative facts to legal 
 conclusions. So while the English courts often determine facts as 
 incidental to legal results, they will not undertake to determine facts 
 apart from their legal consequences. Thus, in the construction of a 
 will and the validity of a power of appointment thereunder, it became 
 necessary to determine the domicile of the testatrix, and whether 
 her will was executed in accordance with the lex domicilii and pur- 
 ported to execute the power. 182 So Eve, J., in Chapman v. Michael- 
 son, 183 in establishing the invalidity of a certain mortgage, had to 
 determine that the mortgagee entered into the mortgage as a money 
 lender and that he was not in fact registered. 
 
 The Scotch courts appear to be more liberal in the declaration of 
 facts, although they also have said on occasion that an action to have 
 a fact declared without any consequential "right" or "relief" 184 was 
 incompetent. Yet they have held an action competent where the 
 plaintiff sought merely a declaration that his lands were outside the 
 boundaries of a district in which he had been taxed upon them 185 
 or that a plaintiff was at a certain date of sound mind. 186 
 
 A case recently decided by the appellate division in New York 187 
 indicates the need of legislation empowering the courts to declare 
 facts, and when necessary, with the aid of a jury. The plaintiff's 
 book, The Genius, was withdrawn from sale by his publisher, the 
 defendant, because the defendant had been threatened with prosecu- 
 tion by the Society for the Suppression of Vice on the ground that 
 the book was obscene. Its circulation, if obscene, was a punishable 
 offense. If not obscene, as the plaintiff insisted, the defendant's 
 withdrawal of the book was a violation of his publisher's contract 
 with the plaintiff. The parties agreed to submit the question of 
 
 "8(1895) Juristische Wochenschrift, 60, No. 3. 
 
 "'Ibid. (1889)364, No. 1. 
 
 ii(1887) 18 R. G., 1(>G, 172. See also Peterscn, op. cit. 498. 
 
 wi(1902) 50 R. G., 399. See also (1914) 85 R. G., 440, 442 (whether defendant had converted a certain 
 typewriter). 
 
 iw In re Wilkinson's Estate [1917], 1 Ch., 620; see also In re Price [1900], 1 Ch. ; 442, 447. 
 
 w* [1908] 2 Ch. C19. As to whether a certain road constituted a way ol necessity so as to pass by implied 
 grant, Nicholls v. Nicholls (1899, Ch.) 81 L. T. 81. In India, a declaration was made that certain fixtures 
 were erected before a certain date. Azeeza v. Calcutta (1916), 24 Calcutta L. J., 562. 
 
 w Giflord v. Trail (1829) 7 S. 854 (that certain petitioners have a vote as-freeholders, which they derided 
 under the circumstances was not a legal question); Lyle v. Bow (1830) 9 S. 22 (declarator, to remedy a 
 defect in the record of another case, that a certain person was merely a trustee). 
 
 iw Hope v. Edinburgh Corporation (1897) 5 S. L. T. 195. 
 
 '^Mackintosh v. Smith & Lowe (1861) 2 M. 389, though they refused later to allow this declaration, 
 made ex parte, to constitute the foundation of an action for damages for false imprisonment against the 
 keepers of an asylum. In New Zealand, a declaration was made that a power oi attorney executed in 
 Louisiana had been duly verified. Dillion v. The Australian Mutual Provident Society (1901, N. Z.) 20 
 S. C. 188. 
 
 iw Dreiser v. John Lane Co. (1918, N. Y. App. Div.) 171 N. Y. Sup., COS.
 
 THE DECLARATORY JUDGMENT. 35 
 
 violation of contract to the court on an agreed statement of facts, 
 the only matter in issue being whether the book was obscene. It 
 was held that as this was a question of fact it was not a proper ques- 
 tion for judicial determination on voluntary submission. The only 
 method then left to the plaintiff to have this issue determined would 
 have been to sue for damages for loss of royalty which would not 
 have been easy to prove and thus enable a jury to find whether 
 the book was obscene. It would be simpler and would avoid this 
 compulsory show of legal hostilities if the code were amended to 
 enable the courts on submitted controversies to declare facts, with 
 the aid of a jury, if necessary, or requested by one of the parties. 
 
 On the whole it may be said that there is a great indisposition to 
 declare facts except as incidental to their legal consequences, and in 
 Germany no request for the mere declaration of a fact is at any time 
 granted. 
 
 FUTURE INTERESTS. 
 
 It frequently becomes desirable to obtain a judicial decision upon a 
 state of circumstances which has not yet arisen. This is particularly 
 the case with reference to the rights of reversioners and remainder- 
 men, but it is also true of other persons who anticipate the enjoyment 
 of rights, etc., in the future and who wish in advance of the event 
 to know their prospective legal position. Indeed, it is probably no 
 exaggeration to say that the majority of declaratory actions are 
 brought in order to enable the claimants to know how they shall 
 conduct themselves in the future. A great many cases have been 
 decided in which this problem has been involved, and while the deci- 
 sions are not altogether reconcilable, some distinctions may be found 
 in them which will repay analysis and examination. 
 
 First, as to reversioners and remaindermen. The common-law 
 aversion to the determination of any questions which did not require 
 immediate solution and relief at the hands of the court was not over- 
 come by the provisions of the act of 1850, which gave the court power 
 on a stated case to express its opinion on questions of the construction 
 of wills, deeds, and other written instruments, but vested it with dis- 
 cretion to refuse an opinion if it considered it advisable; or by the act 
 of 1852, which enabled it to render declaratory judgments where 
 consequential relief might have been granted but was not claimed. 
 The narrow construction that the declaration could be made only 
 where the court could have given positive relief was sufficient to 
 exclude reversioners and remaindermen from having their interests 
 determined) for what coercive relief could the court grant them during 
 the life of the preceding estate in esse? These were not actions to 
 prevent the life tenant from committing waste, but merely to deter- 
 mine what ther rights, privileges, powers or immunities of the rever- 
 sioner or remaindermen were. In view of this conceived necessity of 
 being able to give coercive relief, it is not surprising that the courts 
 before 1883, at least, and not always after that, rejected practically all 
 requests for declarations merely as to interests, the full enjoyment of 
 which lay in the future. Nor does any serious distinction appear to 
 have been made between vested and contingent remainders. An 
 important case in which this view was expressed was that of Lady 
 Langdale v. Briggs, 188 decided in 1856, in which the court refused 
 
 188 (1856) 8 De G. M. & G., 391. 424.
 
 36 THE DECLAKATOBY JUDGMENT. 
 
 during the continuance of a life estate to determine how far various 
 ulterior limitations of leaseholds and copyholds given in trust in a 
 will were affected by a certain codicil. It would have been possible 
 to make the decision, but the limitations placed upon the declaration 
 in one or two previous decisions, together with the view expressed 
 that if the court could make a declaration of "rights" to arise in the 
 future it would render the bill to perpetuate testimony practically use- 
 less, 189 served to induce the court to deny the declaration. That deci- 
 sion deserves mention because the colonial courts notably those of 
 India were guided by it in reaching the same conclusions. In two 
 previous cases 19 the vice chancellor had refused to make a declara- 
 tory decree in the lifetime of the tenant for life, with regard to the 
 interests of persons who might be entitled in reversion. Apparently, 
 the fact that the reversioners through death might not come into the 
 reversion was deemed of moment in deciding against the declaration, 
 notwithstanding the fact that there was a present interest in the 
 reversion. So in another leading case, Bright v. Tyndall, 191 the ques- 
 tion was as to the rights under a will of the daughters still unborn 
 of certain persons, if the daughters should live to be 21 and 
 become married before that time. In an exhaustive opinion, Vice 
 -Chancellor Malins decided that in view of the fact that many of the 
 persons whom his opinion might affect were still unborn and that the 
 operative facts on which his decision was asked might never arise, 
 he would refuse the declaration. Yet there have been cases par- 
 ticularly where the parties to be affected were in esse and the remain- 
 ders were vested in which the court has, in the exercise of its dis- 
 cretion, concluded that the circumstances warranted it in making a 
 declaration of future interests. 192 
 
 The more modern rule, which in recent cases has been approved, 
 was enunciated in 1882 by Jessel, M. K., in Curtis v. Sheffield. 193 He 
 remarked : 
 
 Now it is true that it is not the practice of the court, and was not the practice of the 
 Court of Chancery, to decide as to future rights, but to wait until the event has hap- 
 pened, unless a present right depends on the decision, or there are some other special 
 circumstances to satisfy the court that it is desirable at once to decide on future rights. 
 But where all the parties who in any event will be entitled to the property are of age 
 and are ready to argue the case, the reason of the rule departs, and it becomes a bare 
 technicality. The reason of the rule is this, that the court will not decide on future 
 
 Pee also Yool v. Ewing [1904], Ir. Ch., 434, 445. 
 
 iM Greenwood v. Sutherland (1853), 10 Hare, App. XIII; Garli?k . Lawson (1853), iHd., XV. In tha 
 first case, under a will, one of the questions was: 
 
 "What chi dren, grandchildren, or other remote issue of the sens and daughters are included in the 
 word 'issue' and what interest do such issue respectively take; and at what ages are su n h interests vested 
 and payable." Wood, V. C., refused a declaration except with regard to the legatees before the court. 
 
 w> (1870), 4 Ch. I).. 189, 194. So where a declaratory decree afifected cnlv infants it was not made: Webb v. 
 Byng (1856), 8 De G. M. & G., 633. 
 
 "2 That a remainderman was entitled to property absolutely, r n the death of a life tenant, the limitation 
 over not b^ing v^id for remoteness. Bell v. Cade (1861), 2 J. & H., 122; see a'so Fletcher p. Rogers (1853), 10 
 Hare, App. Mil (the interests of children who might be aiive at the death of their respective parents); 
 Bowling c. Dow.ing (1866), L. R. 1 Ch., 612. (that certain srns tn< k an absolute interest, to be divested in 
 the case of a parti u'ar son if he died without issue). Sti"h de-'a r ations as to "future interests" had 
 occasionally been made even before 1852 when incidental to the determination of present rights, although 
 the practice aprmars to have been somewhat irregu'ar. See Curtis v. Sheffield (1882, C. A.), 31 Ch. D., 1, 4. 
 For the Herman practice see (1885), 13 R. G., 38C, 388; (1887)21 R. O.,"400. 411. 
 
 1M (1882, C. A.) 31 Ch. D., 1, 3, 4. This rule was approved in In re Staples [1916] 1 Ch. 322, where the 
 plaintiffs were devisees in remainder, representing all of their class, who were all over age, who wished to 
 know whether they had estates in tail in remainder as tenants in common, and if not, what classes would, 
 on the death of the life-tenant be entitled. The court declined to mal-e the declarations while the devisers 
 were remainder tr.en. In In re Freme's Contract (C. A.) [190"] 2 ( h. 778, the court saw no reason wtih 
 they should refuse a declaration which might affect unborn children, they being in the same case why 
 certain other children who were represented before the court. An excellent criticism of the English deci- 
 sions before 1892 is contained in an article, The Declaration of Future Rights, by W. A. Bewes (1892). 
 8 L. Quart. R., 48-55.
 
 THE DECLARATORY JUDGMENT. 37 
 
 rights, because until the event happens it does not know who may be interested in 
 arguing the question, and therefore may be shutting out parties who, when the event 
 happens, may be entitled to succeed. 
 
 Yet the old tradition is strong, and notwithstanding the fact that 
 Order XXV, rule 5, has cleared away the limitation that the court 
 must have been able to give consequential relief, and Order LIV, A, 
 gives a wide power of interpreting wills and other written instru- 
 ments, the tendency to revert to the former restrictions frequently 
 reappears. 194 On the whole, we may say that when the remainder 
 is vested and not contingent, when the parties to be affected by the 
 judgment are in esse, of age, and represented before the court, the 
 general rule is to make the declaration. 195 
 
 The Scotch courts, which have always been less conservative than 
 those of England in determining future interests, have recently laid 
 considerable emphasis on the criterion of whether the interest was 
 vested or not. 196 Yet, while they have not hesitated to decide on 
 contingent future interests if there was some one in existence to 
 dispute them, 197 they have not been willing to declare the power of 
 certain persons to give property by will when their decision might 
 profess to determine the rights of children yet unborn who would 
 not be bound by the decision, and when there was a possibility of 
 contingencies arising which might render it nugatory. 198 Indeed, 
 dicta are to be found in the Scotch reports to the effect that the pro- 
 cess of declarator is not intended to declare "remote and contingent 
 rights." 199 
 
 The Indian courts before and since the enactment of the Specific 
 Relief Act in 1877 have rendered decisions which are utterly irrecon- 
 cilable. 200 The more modern rule appears to permit those having 
 vested future interests to bring a declaratory action to determine their 
 rights, etc. 201 So, many cases are to be found in which revisioners 
 bring declaratory suits to have it determined that various acts of the 
 life-tenant, e. g., alienation, adoption, and mortgage, are void as to 
 the plaintiff. 202 
 
 In two interesting cases, a husband whose right depended on his 
 surviving his wife, 203 and a woman whose object was to obtain a 
 declaration that she was entitled to an inchoate right of dower in 
 certain lands, 204 were denied declarations although in the latter case 
 it was admitted that her interest was a present one on the ground 
 that the enjoyment of these interests depended on a contingency. If 
 rendered now, the judgments would not commend themselves as well 
 reasoned. 
 
 Apart from the interests of reversioners and remainder men under 
 the peculiar common-law rules governing real property, a great many 
 actions are brought by persons who wish the court to declare by 
 
 "4 See Yool v. Ewing [19041. Jr. Ch. 434, 444. 
 
 195 See West v. Lord Sackville (C. A.) [1903], 2 Ch. 378, per Stirling, L. J.; In re Freme's Contract (C. A.) 
 1905], 2 Ch. 778. 
 
 i Millar v. Millar's Trustees (1896), 4 S. L. T., 122. 
 
 w Mackenzie v. Lady Mary Hanbury (1846), 8 D., 964. See also Provan v. Provan (1840) 2 D., 298, 3, 
 disputed question of vesting 'in the future. 
 
 "a Harvey v. Harvey's Trustees (1860), 22 D., 1310, 1326. 
 
 199 Mag. of Edinburgh v. Warrender (1863), 1 M., 887. 
 
 **> A brief survey of the declaratory judgments on the rights of reversioners may be found in 2 Woodman, 
 Digest of Indian Law Cases, col. 2142 et seq. 
 
 a See Thakurain v. Thakurain (1881, P. C.) L. R. 9, Indian Ann. 41. 
 
 * Isri v. Mussumut (1883. P. C.) L. R. 10, Indian App. 150. See among the official illustrations to sec- 
 tion 42 of the Specific Relief Act, illustration (d), (e). and (f). 
 
 2 <B Kevan v. Crawford (1877), 6 Ch. D. 29, 42, explainable in that it was decided before 1883, when Order 
 XXV was promulgated. 
 
 20* Bunnell v. Gordon (1890), 20 Ont. L. Rep. 281, a reversion to the old tradition.
 
 38 THE DECLARATORY JUDGMENT. 
 
 anticipation what their future rights or duties, powers or liabilities 
 may be. This function of the declaratory judgment is exceedingly 
 valuable, for it enables persons in doubt to learn authoritatively how 
 they are to govern themselves in the future. The stability of legal 
 relations, certainly one of the most important phases of teleological 
 jurisprudence, is thereby greatly enhanced, and it is to be hoped that 
 the efforts of the future will be directed to the promotion of this 
 function of the law. To this end the declaratory judgment will be 
 found a most effective instrument. 
 
 In England, because of the origin of the declaratory judgment in a 
 dependency upon the power to grant consequential relief, a conserva- 
 tive tendency in declaring future jural relations is to be noted, not 
 altogether overcome by the unrestricted powers conferred by Order 
 XXV. The usual rule still is that only present jural relations will be 
 passed upon. The extent of the increased liberality in declaring jural 
 relations with respect to the future may best be illustrated by the 
 decided cases. Thus, it has been held that the defendants were liable 
 for the damage the plaintiff had sustained and might sustain in the 
 future by reason of the subsidence of canal water and its escape into 
 plaintiff's mill; 205 that the defendant and not the plaintiff is liable 
 to bear the excess-profits tax in future payments of salary and com- 
 mission; 206 that plaintiff had a future power of renewal of his lease, 
 his compensation for the surrender of his leasehold interests depend- 
 ing on the value of his power of renewal, if he hail it ; 207 that a certain 
 contract which still had some time to run was not binding on the 
 plaintiffs; 208 that defendants as partners before the war would be 
 entitled to profits on a certain oasis after the war; 209 that a life- 
 tenant under a proviso that his estate should be forfeited if he sold 
 it might raise ab ante the question of his power to sell without incur- 
 ring any forfeiture; 210 that certain authorities were entitled to 
 inspect in the future all acts of committees submitted to a municipal 
 council for approval ; 211 that plaintiff had a right of access to the city 
 hall; 212 that plaintiff was entitled to a percentage of certain royalties 
 received in the future by the defendant. 213 In the last case (Hoffman 
 v. McCloy), which arose on appeal from an order granted on motion 
 made over a year after the judgment for the appointment of a receiver 
 and an accounting for royalties received since the date of the judg- 
 ment, the majority of the Appellate Division of Ontario held that such 
 royalties could only be collected by a regular action after they became 
 due and they intimated that the original declaratory judgment should 
 not have been made, on which point, however, there was some differ- 
 ence of opinion. In such cases, a conservative court could probably 
 satisfy its conscience in that the judgment for damages for the injury 
 already sustained is in implied declaration that the continuance of the 
 injury would be followed by the same consequences. 
 
 a* Evans v. Manchester, etc. Ry. (1887), 36 Ch. D., 626, 640. But see Atty. Gen. v. Scott (1904, K. B.), 
 20 T. L. R., 630, 633. 
 808 Thompson Bros. v. Amis [1917], 2 Ch., 211, 220. 
 
 207 Bogg v. Midland Railway (1867) L. R. 4 eq. 310. 
 
 208 Societe Maritime t>. Venus Shipping Co. (1904) 9 Com. Cas. 289. And see the numerous cases recently 
 decided on the effect of the war on contracts still to be performed in whole or in part, infra, notes 306-308. 
 
 209 Hugh Stevenson & Sons, Ltd., v. AktiengesellschaftfurCartonnagenindustrie(H. L.) [1918] A. C. 239. 
 M Chaplin's Trustees v. Hoile (1890, Scot.) 28 S. L. R. 51. 
 
 2 " Williams v. Mayor of Manchester (1897, Q. B.) 13 T. L. R. 299. 
 
 M 2 Journal Printing Co. v. McVeity (1915, Ont. App. Div.) 33 Ont. L. Rep. 166. 
 
 MS Powell & Thomas v. Evans Jones & Co. [1905], 1 K. B., 11; Hoffman v. McCloy (1917, Ont. App. Div.), 
 38 Ont. T,. Rep., 446. But see Stewart v. Henderson (1914, Ont. App. Div.), 30 Ont. L. Rep., 447, where a 
 declaration on an analogous claim was refused.
 
 THE DECLARATORY JUDGMENT. 39 
 
 In an action against an insurance company, the plaintiff sought to 
 have a life insurance policy declared valid on which the company had 
 repudiated liability on, the ground that it had been obtained by fraud. 
 The insured was still alive; hence no action on the policy was yet 
 possible. The court declined the declaration on the ground that the 
 company might be in a better position to defend the suit on the policy 
 when the action matured than it then was. The ground does not 
 appear convincing, inasmuch as it had repudiated liability on the 
 ground of fraud, of which it must have had evidence. 214 
 
 We have seen that the German law made the declaratory action 
 dependent on a condition diametrically opposed to that of the English 
 act of 1852, namely, that there shall be no right to consequential 
 relief, whereas in England the existence of such a right was essential. 
 Accordingly, Germany found the declaratory judgment an exceedingly 
 useful instrument for the declaration of jural relations to be enjoyed 
 in the future. From the beginning, therefore, "future rights" have 
 been declared, the only limitation being that there had to be an exist- 
 ing legal relation between the parties when the declaratory action 
 was instituted. Thus, we find judgments declaring a liability for 
 future damages; 215 that payments be reimbursed for any claims which 
 mav be brought against the plaintiffs ; 216 that a landed estate is bound 
 to furnish wood as needed to a municipality; 217 that defendants were 
 bound under a contract to pay plaintiff a certain sum in case she 
 married; 218 that a father was under a duty to furnish his daughter 
 upon her marriage with a reasonable outfit; 219 that a foreign govern- 
 ment was entitled to a legacy as soon as the royal sanction was 
 given; 220 that an officer's wife was entitled to a pension when he 
 died. 221 But a prospective heir can not bring an action during the 
 lifetime of a testator to determine the invalidity of a will, on the 
 ground that there is as yet no sufficient "legal relation" between the 
 parties. 222 
 
 , Reference has already been made 223 to the German law in force 
 since 1898 by which an action may be brought under certain circum- 
 stances to recover money or enforce performance of an obligation 
 due in the future. This is not a declaratory judgment, but a judg- 
 ment which may be executed when the obligation becomes due. The 
 advantages of this procedure under modern methods of business afford 
 a profitable subject for study by American lawyers. 
 
 DECLARATION OF STATUS. 
 
 The determination of questions of status was the earliest function 
 of the declaratory judgment both in Roman law and by specific desig- 
 nation in the English law. The public and private interest in the 
 security and certainty of personal status induced the early extension 
 
 n Honour v. Equitable Life Ass. Soc. [1900], 1 Ch., 852. In similar cases the courts have hesitated to 
 declare policies and notes void before they became due, preferring to allow the plaintiff to plead his defenses 
 when sued on these instruments. See supra, note 133. 
 
 21* (1885) 13 R. G., 372, 374; (1901) 49 R. G., 370, 371. 
 
 216 (1905) 61 R. G., ll>4, 166. 
 
 *" (1893) 41 R. G., 369. 
 
 218 See Peterson, op. cit. 501, note. 
 
 219 (1901) 49 R. G., 370. But if she had not been engaged when she brought the action, the court would 
 have for.nd that she had an insufficient "legal interest." The father had refused to give her the outfit. 
 Execution, of course, was conditional on her actual marriage. 
 
 75 R. G., 406. 
 
 . ., . 
 
 221 (Inly 6, 1880, R. G.) Biihr, op. cit. 144. This claim was both conditional and future. The officer was 
 Still alive, and it was conditional on the wife surviving him. 
 
 22 
 
 , 
 
 222 Gatipp-Stein, op. cit. 608. 
 
 223 Supra.
 
 40 THE DECLARATORY JUDGMENT. 
 
 of judicial power to the determination of doubtful or disputed cases 
 of status. It will be recalled that the Legitimacy Declaration Act, 
 1858, enabled any British subject to apply by petition to the Court for 
 Divorce and Matrimonial Causes the court which had taken over the 
 jurisdiction in matters of status formerly vested in the ecclesiastical 
 courts for a declaration of legitimacy, or of the validity or invalidity 
 of a marriage. 224 That same act empowered any person domiciled in 
 England, Ireland, or Scotland, or having real estate in England or 
 Scotland, to apply for a "declaration of right" to be deemed a 
 natural-born subject. 225 
 
 Under this act various cases have arisen in which a plaintiff claimed 
 a declaration that he was legitimate and the lawful successor to a title 
 or to property, as a consequence of the validity of the union, as a 
 lawful marriage, of which he was the offspring. 228 But the English 
 courts do not admit an action to have a child declared illegitimate, 227 
 as is permitted in Scotland, 228 even when an action is framed involving 
 property for the purpose of establishing the illegitimacy of a child. 229 
 
 The English ecclesiastical courts had long before 1857, when their 
 jurisdiction was transferred to the Court for Divorce and Matrimonial 
 Causes (now the Probate, Admiralty, and Divorce Division of the High 
 Court), exercised jurisdiction over suits known as "jactitation of mar- 
 riage" a term derived from the canon law in which one person 
 asserts or boasts that he or she is married to the other, whereby a 
 common reputation of their marriage may result. Either of the 
 parties to the alleged relationship but not a third person 23 may 
 ask for a declaration that such a marriage never existed and that the 
 boaster be enjoined to refrain from any future j actitation of the mar- 
 riage. 231 It is analogous to an action for slander per se. Such actions 
 are now rare, 232 as the same result is obtainable under the Legitimacy 
 Declaration Act, authorizing actions to which third persons having 
 roperty interests may be parties. It will be recalled that Order 
 V, rule 5, does not apply to the Probate Division. The Scotch 
 courts deal with such cases by the declarator of putting to silence, in 
 which, if successful, perpetual silence is imposed on the defendant. 
 This is but one of the varied uses of the declarator of perpetual silence. 
 The judgment in conclusive as to the fact of marriage or not. 1 The 
 English law, like other systems of law, has long been familiar with 
 the action for the annulment of marriage. When this declares void 
 a so-called marriage which was never legally a marriage, it is a declara- 
 tory judgment. If it merely annuls a voidable marriage on the 
 request of one of the parties, it is, like a divorce decree, investitive 
 rather than declaratory. 233 The Scotch utilize the declarator of mar- 
 riage and the declarator of nullity of marriage to have the validity or 
 invalidity of a marriage declared. 234 The Indian courts frequently 
 
 *" 21 and 22 Viet. ch. 93, sec. 1. 
 
 225 Ibid., sec. 2. 
 
 226 West v. Lord Sackville [1903], 2 ch., 378; Beresford v. Attorney General (C.A.) [1918], P., 33. See 
 also Plummer v. Plummer [1917], P., 163, 165. 
 
 227 Yool . Ewing [1904], Ir. ch., 434. 
 
 * Gardner v. Gardner (1877), 2 A. C.. 723. There is a special declarator of bastardy in Scotland. 
 
 }: Cooke v. Cooke (1SS5), 4 De G. J. & S., 704, reversing Gurney v. Gurney (1855), 1 II. & M., 413. 
 
 "o Campbell v. Corley (1802). 31 L. J. Prob.. 60. 
 
 > Hawke v. Corn (1820), 2 Consist., 284. See a brief note in (1897) 103 L. T.. 381. 
 
 2 Thompson v. Rourke [1892], P., 244 appears to be the last case, and the only one since 1862. 
 
 133 Supra, p. 4. 
 
 at Fraser, op. cit., 1238, 1244.
 
 THE DECLARATORY JUDGMENT. 41 
 
 have occasion to declare the validity or invalidity of a marriage 235 
 or of an adoption. 236 Mention has been made of the Wisconsin stat- 
 ute authorizing the declaration of the validity of a marriage which 
 has been doubted or disputed. 237 The Ontario Marriage Act which 
 gave the courts of Ontario power to declare marriages valid or invalid 
 was finally held unconstitutional in Peppiatt v. P eppiatt 238 on the 
 ground that this was a matter solely within the jurisdiction of the 
 Dominion Government. 
 
 The German civil code and code of civil procedure provide expressly 
 for the declaration of the existence or nonexistence of a marriage, 
 of the relation of parent and child, and of the paternal power of one 
 of the parties over the other. 239 But as the German law provides 
 special proceedings both for the annulment of void and of voidable 
 marriages, the special declaratory action under sections 633 and 638 
 has been held to apply only to a limited class of cases, e. g., when a 
 marriage is alleged which has not been recorded ; where it is doubtful 
 whether 4 a marriage contract or ceremony was concluded, or whether 
 a marriage has been annulled abroad. In other words, the intrinsic 
 grounds of nullity or voidability are not investigated in this declara- 
 tory action, but only tormal matters. This holds true more or less 
 of the questions affecting legitimacy under sections 640 et seq., which 
 cover such matters as dates of birth, 240 actual legitimation, or other 
 facts which may be established by investigation. Questions involv- 
 ing the substantive law of legitimacy and paternal power may be 
 tried by the regular declaratory actions. 
 
 The English courts under their power to construe wills and deeds 
 of trust under Order LIV, A, frequently determine incidentally ques- 
 tions of status and relationship. 241 Similarly, the county judges act- 
 ing as arbitrators under the Workmen's Compensation Act, 1906, 
 determine questions of relationship to the decedent of alleged 
 dependents. 242 
 
 Among the numerous other questions involving the declaration of 
 status or relationship which have come before the courts are the 
 declaration of lunacy; 243 the judicial declaration of death; 244 of the 
 plaintiff's right to be restored to his caste ; 245 that plaintiffs are not 
 members of a certain society; 246 that petitioner be declared insol- 
 es Aunjona v. Pralhad (1870), 6 Bengal L. R., 213; Mussamat v. Mussamat (1876), 25 Suth. W. R., 444; 
 Yamanabai w, Narayan (1876), 1 Indian L. Rep. Bombay, 164, 167. Declaration by a woman and her 
 children against a third person that plaintiffs are the wife and children of A, a living person. See illustra- 
 tion (h) to sec. 42 of specific relief act, 1877, Collett, op. cit. 222. 
 
 Kotomarti v. Kotomarti (1874), 7 Mad. 351. The Civil Procedure Code of Ceylon, 1889, sec. 217, pro- 
 vides for declaratory decrees which "declare a right or status." 1 Pereira, op. cit. 319. 
 2" Supra, p. 32. 
 * (1916) 36 Ont. L. Rep., 427. 
 
 239 Code of Civil Procedure, sees. 633, 638, 640, et seq. 2 Gaupp-Stein, op. cit. 277 et seq. 
 
 240 (1911) 76 R. G., 283. 
 
 2<1 e. g., whether a certain legatee under a will was a Roman Catholic. In re May [1917] 2 Ch., 126. 
 Whether plaintiffs were tenants for life or had some other status under a will. In re Boyer's Settled Estates 
 [1916|, 2 Ch., 404. The frequent determination of who are "lawful issue" (e. g., In re timson [1916], 2 Ch., 
 362) does not usually involve the declaration of status. 
 
 242 Simms v. Lilleshall Coal Co. (C. A.) [1917], 2 K. B., 368. 
 
 243 Usually only incidental to a petition for the appointment of a curator or guardian. This, of course, 
 is well recognized hi our law where commissions are appointed upon writs in the nature of writs de lunatico 
 inquirendo to determine whether the subject of the inquiry is a lunatic or npt. Burke v. Wheaton (1828), 
 3 Cranch C. C., 341; Cox v. Osage County (1890), 103 Mo., 385, 15 S. W., 763. See also Vuyk v. Vuyk (1882), 
 1 So. Afr. Rep., 19; In re I. M. (1913), Queensland W. N. case, 40. For a declaration of sanity, see Mackin- 
 tosh v. Smith & Lowe (1864, Scot.), 2 M., 389. 
 
 244 Likewise known in many systems of law, but not generally as an independent procedure as it is, e. g., 
 in Germany and Ontario. German civil code (after 10 years' absence), sees. 13-18; (1905) 60 R. G., 196, 
 198. In Ontario, seven years' absence under sec. 148 of the insurance act, re Marshall and Ancient Order 
 of United Workmen (1888), 11 O. W. R., 1078; 12 ibid., 153. See aldo Pennsylvania, Laws 1917, ch. 193, 
 p. 460. 
 
 246 (India, 1876) 7 Suth. Civ. R., 299. 
 " (1882) 8 R. G., 3.
 
 42 THE DECLARATORY JUDGMENT. 
 
 vent; 247 that plaintiffs are tenants and not day laborers; 248 that plain- 
 tiff and defendant are partners; 249 that defendant is a trustee for the 
 plaintiff; 250 that plaintiff is heir to another. 251 When such judgments 
 establish a new status or relationship, however, they are investitive 
 rather than purely declaratory. 
 
 CONSTRUCTION OF WRITTEN INSTRUMENTS. 
 
 One of the most fruitful uses of the declaratory judgment has been 
 found to lie in the determination of the validity or invalidity or of 
 the meaning of written instruments. Where a dispute turns upon the 
 construction or interpretation of a document or written instrument it 
 is clear that amicable submission by which a court is asked to declare 
 its effect or meaning will be as efficacious in determining the jural 
 relations of the parties as hostile litigation. The English act of July 
 15, 1850, therefore, enabled the court of chancery on a special ques- 
 tion stated to determine "the construction of any act of Parliament, 
 will, deed, or other instrument in writing, or any article, clause, mat- 
 ter or thing therein contained." 252 This power was extended by 
 Order LIV, A, of the supreme court rules promulgated in 1893 to 
 include " a declaration of the rights of the persons interested" in such 
 "deed, will, or other written instrument," and the decision is obtaina- 
 ble on originating summons. The court may direct any persons inter- 
 ested to be served and brought in. Tne majority of the declaratory 
 judgments now rendered in the chancery division involve the con- 
 struction of wills and deeds of settlement; but numerous cases may 
 be found which involve the interpretation of contracts, leases, mort- 
 gages and other written instruments, including even statutes and 
 ordinances. 
 
 The power to construe wills without the issuance of any decree or 
 order constitutes a reform of vast importance when one recalls the 
 ruinous and prolonged litigations recorded in the law reports of the 
 early nineteenth century, the issue tried involving merely the con- 
 struction of a will, the ascertainment of the persons entitled to 
 legacies, or the proper administration of an estate. Not only a 
 trustee or executor, but any person interested may now ask for a 
 declaration or determination of any question arising under the will 
 in whose solution he is interested. A few of our States now admit 
 bills to construe wills 253 at any time a disputed question arises, 
 whether questions of trusts are involved or not. The procedure is 
 so eminently practical and useful that it may be hoped that all of 
 our States will soon accept this modern instrument of preventive 
 justice. 
 
 Perhaps the best way to indicate the scope of this power of con- 
 struing wills in the form of declarations is to present certain illus- 
 trative determinations to be found in recent decisions. These cases 
 
 J < 7 Usually incidental to some decree for appointment of receiver, etc. See Indian Code of Civil Proc.i 
 1882, sees. 344, 351. 
 
 2 8 (1886) 16 R. G., 390. In construing a bequest, the chancery division had to determine whether farm 
 laborers were "servants." In re Forrest [1916], 2 Ch., 386. 
 
 2 Edmonds . Edmonds (1903, N. Z.), 24 S. C. R., 440. 
 
 a* Raser v. MsQuade (1904), 11 Br. Col., 161. See also In re Charteris [1917], 2 Ch., 257. Such an action 
 may be brought in the United States. See Donohoe v. Rogers (1914), 108 Cal., 700, 144 I'ac., 958. To 
 effect that a certain man was a "bare trustee" under a statute, In re Blandy Jenkins' Estate [1917], 1 Ch.46. 
 
 "I This is the Scotch declarator of heirship. Menzies v. McKenna (1914), 51 Sc. L. Rep., 205. But it 
 was not allowed where A brought declarator against B that B was not the heir of C, deceased. Officers 
 of State v. Alexander (1866), 4 M., 741; (H. L.) 6 M., 54. 
 
 252 Supra, p. 7. 
 
 253 Supra, p. 30.
 
 THE DECLARATORY JUDGMENT. 43 
 
 include such declarations as the following: The destination of a legacy 
 on the death of the legatee; 254 whether a certain bequest constituted 
 a residuary bequest; 255 the method of distribution of the residuary 
 estate; 256 the power of a married woman to make "future" mort- 
 gages under a testamentary devise of a reversion providing for a 
 restraint on anticipation; 257 whether death duties were to be paid out 
 of a specific legacy or by the corpus of the estate, 258 and other ques- 
 tions concerning the incidence of taxation; whether a will validly 
 executed a power of appointment; 259 whether "lawful issue" is con- 
 fined to children or includes remoter descendants; 260 whether plain- 
 tiffs were tenants for life 261 or were "servants" within the meaning 
 of a bequest; 262 whether the bequest of an annuity charged on real 
 estate with power of appointment over the annuity made it a 
 "perpetual" charge; 283 whether a gift 264 or certain trusts 265 were 
 valid or void ; to whom certain income or chattels 266 or devises of 
 realty 267 belonged; the quantity of the estate -de vised ; 268 whether 
 plaintiff, a widow, was immune from any defeasance of her title to 
 a legacy in case she married. 269 
 
 Similar questions arise under deeds of settlement and trust: e. g., 
 whether a settler's attempted assignment was or was not an imper- 
 fect voluntary gift, 270 or was void as against his creditors ; 271 whether 
 certain dividends payable in stock were to be treated as capital or 
 as income and who was entitled thereto; 272 whether a certain gift 
 was within the exception of a covenant to settle after-acquired 
 property; 273 whether plaintiff had power to disentail without con- 
 sent ; 274 whether a settler was privileged to deduct the income tax 
 from certain gifts in trust; 275 what was the amount and character 
 of the interest settled on certain beneficiaries, 276 or the privileges 
 and immunities derived from certain marriage settlements. 277 Thus 
 a receiver in bankruptcy of a cestui's life estate, which a prospective 
 purchaser declined to take on the ground that it was defeasible, 
 obtained a declaration that he had power to convey good title to 
 an indefeasible life estate. 278 
 
 2" In re Harrison (1918, Ch.) Weekly Notes, Mar. 30, 1918, 91. 
 
 255 in re Gliddon [1917], 1 Ch., 174; In re Woolley [1918], 1 Ch., 33. 
 
 256 in re Walker [1917], 1 Ch., 38. 
 25' In re Chrimes [1917], 1 Ch.. 30. 
 
 253 In re Kennedy [1917], 1 Ch., 9. See also In re Scull (1917, C. A.), 118 L. T., 7; In re Palmer [1916) 
 2Ch., 391. 
 
 2w in re Wilkinson's Estate [1917], 1 Ch., 620; Inre Mackenzie [1917], 2 Ch., 58. See also In re Wernher 
 [1918], 1 Ch., 339; Redman v. Permanent Trustee Co. (1917, Aus.) 22 C. L. R. 84, 17 N. S. W., 60. 
 
 * In re Timson (C. A.) [1910] 2 Ch., 302. 
 
 261 In re Boyer's Settled instates [1910], 2 Ch., 404. 
 
 262 In re Forrest |1910], 2 Ch., 386. 
 
 2 Townseiid v. As-roft [1917], 2 Ch., 14. 
 
 2< Atty. Gen. for Xew /calami v. Brown (P. C.) [1917], A. C.. 393; Van Kerkvoorde v. Hedley (1917, 
 N. S. W'.), 17 St. Rep., 205. That an attempted gift over, after a bequest, was void: In re Dugdale (1888), 
 38 Ch., D., 176. 
 
 265 InreLodwi<*[191G], 2Ch., 2(i; Inre Garnham [1910], 2Ch., 413; InreMellody (1917, Ch.), 118 L. T.. 155. 
 
 266 In re Eyre [1917], 1 Ch., 351; In re Bercsford-Hope [1917], 1'Ch., 237. 
 
 267 Redman v. Permanent Trustee Co. (1917, N. S. W.), 17 St. Rep., 60; Falconer Stewart v. Wilkie (1892, 
 Scot.), 19 R., 030. 
 
 268 Fletcher v. Rogers (1853), 10 Hare App. XIII. 
 
 269 This is one of the few French cases of the negative form of declaration. Herv6 (Paris, Apr. 1, 1862), 
 D. 02. 2, 77. 
 
 270 Carter v. Hungerford [1917], 1 Ch., 2GO. 
 
 2'i In re Bulteel's Settlements [1917], 1 Ch., 251. 
 
 272 in re Hatton [1917], 1 Ch., 357; In re Thomas (C. A.) [1.916], 2 Ch., 331. 
 
 273 in re Thorne [1917]. 1 Ch., 300. 
 
 27< In re Blandy Jenkins's Estate [1917], 1 Ch., 46. 
 "5 Brooks v. Price (C. A .) [1916), 2 Ch., 345. 
 Harvey v. Harvey's Trustees (ISfiO, Soot.), 22 D., 1310. 
 
 ' Mackenzie, . Lady Mary Hanhury (1846), 8 D., 964; Byam v. Byam (1854), 19 Beav., 58; Smith v. 
 Smith's Trustees (1905), 12 S. L. T., 782. 
 *i In re Burroughs-Fowler [1916|, 2 Ch., 251.
 
 44 THE DECLARATORY JUDGMENT. 
 
 Suits are frequently brought to have deeds or mortgages declared 
 invalid, or valid, 279 . when their validity is disputed. So mortgages 
 and deeds, like other instruments, occasionally require construction, 
 e: g., whether upon the separation by deed of a single tenement into 
 two tenements, a right of way over one passed to the grantee of the 
 other by implication. 280 
 
 In connection with bills of sale, actions have been brought to have 
 them declared void 281 and to construe them. 282 
 
 Leases have frequently been construed. Actions have been brought 
 to have them declared fictitious or void as against the interests of 
 the plaintiff. 283 The judicial power to construe covenants in leases 
 before they are broken and before damages have accrued is a good 
 illustration of the efficacy of the declaratory judgment. For exam- 
 ple, the following case has arisen on several occasions: Under a 
 lease containing a covenant against assignment by the lessee without 
 the consent of the lessor, which is not to be arbitrarily withheld, the 
 lessee has wished to assign, but the lessor has imposed certain 
 conditions upon the grant of his consent. In this country the lessee 
 might make the assignment, if the assignee was willing to take it, 
 and thereby invite a suit on the covenant, or else he might decline 
 to assign and forego the benefits he expected. In England he has a 
 third alternative, exceedingly valuable, which enables him to ask the 
 court whether the landlord's consent is unreasonably withheld or 
 whether the landlord has the power to impose onerous conditions 
 upon the grant of his consent. In several cases brought by lessees 
 who desired to assign the courts made such declarations. 284 
 
 In other cases declarations have been made as between lessor and 
 lessee to determine on whom, under a covenant, fell a loss by fire 
 from aircraft bombs; 285 that a certain notice of termination of lease 
 by the lessee was ineffectual to operate as a surrender and that the 
 lease was still subsisting; 286 that a receiver of a lessee had no power 
 to deduct from the rent certain income taxes; 287 that a lessee was 
 privileged and had a right to remove timber from certain leased land, 
 without interference by the defendant lessor, owner under a land 
 grant from the Crown. 288 
 
 * As to deeds, there are relatively few cases in England, but many in India. Very often the declara- 
 tion is merely incidental to a suit to set aside the deed declared inva'id. See Pearce v. Bulteel [1916], 2 
 Ch. 544 (void against creditors). Indian cases: Nuflsa v. Mahomed (1876), 24 W. R., 336. For a declara- 
 tion that a deed is forged see Prasanna v. Mathuranath (1871). 8 Bengal L. R., Append. 26; 15 W. R., 487. 
 Suit has occasionally been brought to have a deed declared valid. Phoolchunder v. Sheoranee (1868), 9 
 W. R., 104. 
 
 Validity of a mortgage, In re Chrimes [1917|, 1 Oh., 30; The Mamr [19031, p., 95 (where the declaration, 
 however, was denied). Invalidity of a mortgage as against creditors, Chapman t>. Michaelson [1908], 2 
 Ch., 612; (C. A.) [1909] 1 Ch., 238 (privilege of the debtor: immunity of the trustee). Inva'idity of a 
 debenture trust-deed and of debentures issued thereunder: Parian Coast Coal Minos (Ltd.) v. Arbuthnot 
 (1917, P. C.), 117 L. T., 613. For cases in Germany see (1909) 71 R. G., 12 and (1910) 74 R. G., 292. 
 
 su Ni-holls v. Ni^holls (1899, Ch.), 81 L. T., 811. See also Shaw v. Scottish Widows' Fund Life Ass. 
 Soc. (1917, Ch.), 117 L. T., 697. 
 
 281 That the bill of sale did not truly set forth the consideration for which it was given, Parsons v. Equitable 
 Investment Co. (C. A.) [1916], 2 Ch., 527. Purchaser sued for a declaration that a contract of purchase 
 was void because of the vendor's misrepresentations: (1907) 65 R. G., 399. 403. Declaration that an 
 execution sale of property had been illegally held: Kripa v. Banehanidhi (1913), 19 Calcutta L. J., 388. 
 
 J3J Action by a vendor to have it declared that the purchaser had no right to have inserted in the con- 
 veyan^e the grant of a certain right of way. In re Walmsley and Shaw's Contract [19171, 1 Ch., 93. 
 
 Raghubar v. Bhaikdhari (1869), 3 Bengal L. R., Append. 48; Ram v. Rughoo (1876), 1 Indian L. 
 Rep., Calcutta, 456. 
 
 Negative declaration of defendant's (lessor's) disability to impose onerous conditions. Young v. 
 Ashley Gardens Properties (Ltd.) [1903], 2 Ch., 112; Jenkins v. Price [1907], 2 Ch'., 229; West v. Gwynno 
 [1911), 2 Ch., 1; Evans v. Levy [1901], 1 Ch., 452; Cornish v. Boles (1914), 31 Ont. L. Rep., 505. In some 
 of these cases the declaration asked was of plaintiff's power to assign without lessor's consent. 
 
 * Enlavde, Ltd., v. Roberts [1917], 1 Ch., 109. 
 
 Burch v. Farrows Bank Ltd. [1917], 1 Ch., 606. 
 
 ^ In re Hayman, Christy & Lilly, Ltd. (No. 2) [1917], 1 Ch., 545. 
 
 * North Pacific Lumber Co. v. British American Tr. Co. (1915), 23 Br. Col., 332, 340.
 
 THE DECLAKATORY JUDGMENT. 45 
 
 Reference has already been made to various cases in which insurers 
 have sought to have the court declare the invalidity of policies, either 
 before any loss has occurred or before suit has been brought against 
 them. 289 Such requests for declarations are almost always incidental 
 to a bill for the cancellation or delivering up of the alleged invalid 
 policy. 
 
 In a number of cases actions have been brought to determine the 
 powers of unincorporated associations or of corporations, involving 
 a construction of their by-laws or articles of incorporation. Thus 
 questions have been raised for declaration whether a club whose object 
 was the promotion of the welfare of cyclists had power to devote 
 a part of its funds to the payment of an annuity to its retired secre- 
 tary; 290 by what method of computation the fixed value of certain 
 shares of stock in a closed corporation should be ascertained; 291 and 
 specific declarations have been sought that a company was under a 
 duty to apply its profits, after certain deductions, to the payment of 
 cumulative dividends; 292 that a company had no power to forfeit fully 
 paid shares on the ground that it had a lien on them for the enforce- 
 ment of a claim of the company against its members, and this even 
 before there was an attempt to enforce the by-law mentioned; 293 or 
 that certain resolutions or proposed actions were ultra vires. 204 
 
 Contracts. Probably one of the most useful functions of the declara- 
 tory judgment in preventing litigation lies in the fact that it enables 
 parties to obtain in case of doubt and in advance of the necessity of 
 acting upon their own interpretation of their obligations, with the 
 resulting invitation of a lawsuit, an authoritative judicial interpreta- 
 tion of their mutual rights, powers, duties, etc., under written instru- 
 ments. In the modern economic world, in which contracts constitute 
 the normal instrument of business relations, it is of estimable value 
 to have at the disposal of the parties an official judicial agency to which 
 they may turn at any time to settle disputes arising in the performance 
 of the contract. In England and some other countries, in order to 
 obtain a judicial construction of a contract, it is unnecessary to resort 
 to the crudity of breaking it, either by repudiation or otherwise, or, to 
 avoid a lawsuit, of permitting the other party to enforce his own inter- 
 pretation of his obligations under it. Yet in this country we are 
 driven to this extreme. It is true that parties now frequently provide 
 their own forum for settling differences and disputes by the insertion 
 of arbitration clauses in their contracts, but this is still exceptional 
 and lacks some of the authority of judicial decision. There seems no 
 logical reason why the State, instead of throwing parties upon the 
 necessarily unauthoritative advice of counsel and thus often nourish- 
 ing the seed of a difference of interpretation into a full-grown lawsuit, 
 should not furnish an official forum, its regular courts, for the settle- 
 ment of differences arising out of the construction and interpretation 
 of contracts. 
 
 Before taking up some of the illustrations of this useful function 
 of the courts in other countries, attention may be directed to their 
 power to determine and declare the legal character of writings whose 
 
 Supra, p. 31. 
 
 !M Cyclists Touring Club v. Hopkinson (1910), 101 L. T., 848. 
 !' Collins v. Sedgwick (1917], 1 Ch., 179; see also in re Condran [1917], 1 Ch., 639. 
 s Evling v. Israel and Oppenheimer, Ltd. (1917, Ch.), 118 L. T., 99. 
 sss Hopkinson v. Mortimer, Harley & Co., Ltd |1917], 1 Ch., (146. 
 
 an Cope v. Crossingham [1908], 2 Ch., 624, 637; (C. A.) [1909), 2 Ch., 148. Grainger v. Order of Canadian 
 Home Circles (1914), 31 Ont. L. Rep., 461.
 
 46 THE DECLARATORY JUDGMENT. 
 
 nature is uncertain or disputed. Thus, the courts of England or of 
 her colonies have been asked to determine whether certain letters and 
 memoranda constituted a contract; 295 whether certain regulations of 
 the colonial office and the spending of money by plaintiff in reliance 
 thereon constituted a contract; 296 whether a certain indorsement on 
 an insurance policy amounted to a valid assignment thereof; 297 whether 
 a certain document constituted a settlement 298 or a valid will; 2 " and 
 whether certain entries in books were "advances" in the sense of the 
 testator's will. 300 
 
 Coming now to the numerous questions which have involved the 
 construction and interpretation of contracts, actions have on several 
 occasions been instituted for a declaration that a certain contract was 
 no longer binding on the plaintiff or was binding on the defendant. 
 Among the former of these cases, which seeks a negative declaration 
 of privilege (absence of duty), the case of Societe Maritime et Com- 
 merciale v. Venus Steam Shipping Co. (Ltd.). 301 is a leading one. Here 
 the plaintiffs had undertaken by contract to load ore on steamers to 
 be furnished by one L., the alleged assignor of the defendants, for 
 five years. The plaintiffs claimed that there was no valid assignment 
 to the defendants, that L. was not the defendants' agent, and that 
 there was no novation. As the original contract had over a year still 
 to run, and as plaintiffs did not wish to break it and subject themselves 
 to an action for damages, they availed themselves of the valuable 
 orivilege of seeking from the court a declaration that the contract was 
 no longer binding on them. In making the declaration sought, 
 Channell, J., remarked: 
 
 Showing a necessity of a decision upon it, I. think they are entitled to a declaration 
 as to whether or not the contract is binding upon them. They are not bound at their 
 peril to perform it and then to be liable to heavy damages for not performing it for the 
 space of the next one and one-half years. If they are wrong, they would be liable for 
 damages down to the time of the judgment of the court while they are refusing to 
 perform; but upon the court saying that they were bound, they would then say: 
 "We will now go on with it for the remainder of the time." I think that is a sufficient 
 reason [for making the declaration]. 302 
 
 So declarations have been sought that a contract was not binding 
 because the promisee was a money lender not registered according to 
 law; 303 or, in Germany, because it was not authenticated by a notary. 304 
 On the other hand, declarations have been sought that contracts were 
 binding which the promisor had either repudiated or threatened to 
 repudiate. In this case the declaratory action is a milder substitute 
 for the executory action, but has a special advantage when the con- 
 tract is one involving a continuous performance and no interruption 
 or substitution of damages for performance is desired. 305 
 
 The great importance of this power to make declarations of the 
 jural relations of parties under a contract has been strikingly illus- 
 
 * Lovesy . Palmer [1910], 2 Ch., 233. 
 
 296 Lantour v. Atty. Gen. (18B5), 5 N. R., 102. 231. 
 
 2" In re Williams (C. A.) [19171, 1 Ch., 1. 
 
 298 Simpson v. Commissioner of Stamp Duties (1917, N. S. \V.), 17 St. Rep., 217. 
 
 29 Badenach v. Inelis (1913), 29 Ont. L. Rep., 165. 
 
 * In re Deprez [1917], 1 Ch., 24. 
 
 301 (1904), 9 Com. Cas. 289. 
 
 302 See also West Ham Cprp. v. Sharp [1907], 1 K. B., 445; Hulton v. Hulton [1916], 2 K. B., 642 (declaration 
 sought by a married woman that she was not bound by a certain contract of separation obtained from her 
 by fraud); to the same effect, see Slin?erland v. Slin?erland (1910), 109 Minn., 407, 410, 124 N. W., 19. 
 
 " Lod^e v. National Union Investment Co. (Ltd.) [1907], 1 Ch., 300 (not granted). 
 
 so< (1910) 73 R. G.,272. 
 
 "* Holt v. A. E. G. Electric Co. [1918], 1 Oh., 320 (Controller of Enemy Property claimed that he was not 
 bound by agreement for services between plaintiff and defendant company. Plaintiff's request for a 
 declaration that he was so bound was granted). See also, for Germany, (1906) 62 R. G., 417.
 
 THE DECLARATORY JUDGMENT. 47 
 
 tratcd during the last few years when the English courts have been 
 called upon to declare the effect of the war on contracts of various 
 kinds. Parliament assisted this judicial function by providing in the 
 Legal Proceedings Against Enemies Act, 1915, that a British subject 
 or corporation might claim a declaration against an enemy subject or 
 corporation, provision being made for substituted service, "as to the 
 effect of the war on rights or liabilities under a contract entered into 
 before the war." Numerous cases of this kind have arisen. In the 
 recent case of Ertel Bieber & Co. v. Rio Tinto Co. (Ltd.) 308 the plain- 
 tiffs, an English company owning copper mines in Spain, had con- 
 tracted before the war to sell ore to German companies over a number 
 of years. The contract contained a suspensory clause providing that 
 if owing to war the sellers should be prevented from shipping, the 
 obligation should be suspended during the continuance of the impedi- 
 ment. When war broke out part of the contract was still unexecuted. 
 The plaintiffs claimed a declaration that the war had terminated and 
 not merely suspended the contract. The House of Lords granted the 
 declaration on the ground (1) that performance had become illegal 
 during the war, and (2) that the suspensory clause was void because 
 it was against public policy that an English company should be bound, 
 even after the war, to confer an advantage on a Germany company. 307 
 
 Some other cases involve equally interesting questions. In Metro- 
 politan Water Board v. Dick Kerr & Co. 308 the performance of a con- 
 tract for the construction of a reservoir was interrupted by the 
 minister of munitions, who ordered the defendants to cease work, to 
 remove a large part of the plant (which by the contract was to belong 
 to the plaintiffs), and to sell it on behalf of the Government to certain 
 munition factories. Defendants asserted that by reason/of the stop- 
 page of the work and the uncertain duration of the war the contract 
 was terminated, whereupon the plaintiffs sought a declaration that 
 the contract was suspended but not terminated, and that they were 
 entitled to the proceeds of the plant when sold. The court of appeal 
 denied the declaration and held the contract terminated, reading into 
 the contract an implication that defendants' obligations under it 
 should cease if the Government made performance illegal or im- 
 possible. 309 
 
 Among the various kinds of contracts which have recently received 
 interpretation by declaration mention may be made of the following: 
 In a contract for services, where plaintiff was to be paid by a per- 
 centage of the net profits, the question was raised tor declaration 
 whether the excess-profits duty was to be deducted in order to arrive 
 at the net profits; 310 in Stretch v. Scout Motors, (Ltd.) 311 plaintiff 
 sought and obtained a declaration of immunity from the forfeiture of 
 a war bonus payable for not leaving defendants' service, on the 
 ground that he did not leave voluntarily but had been ordered to 
 leave by the minister of munitions. Two recent cases arose under 
 
 *>(H. L.) [1918] A. C. 260. 
 
 See also Zinc Corporation (Ltd.) v. Hirsch (C. A.) [1915], 1 K. B., 541; Orconera Iron Ore Co. (Ltd.) 
 v. Fried- Krupp A. G. (1918, C. A.), 118 L. T., 237. In Hugh Stevenson & Sons (Ltd.) v. A. G. fur Carton- 
 na^enindustrie [1918] A. C., 239, the House of Lords declared the termination of a partnership and the 
 right of the German partners to share after the war in a certain part of the profits derived during the war 
 from their share. 
 
 HK(C. A. ) [1917] 2 K. B.,1. 
 
 sea See also for other declarations of the effect of war on different contracts: Marshall v. Glanvill [1917], 
 2 K. B., 87 (agency); Smith, Coney & Barrett v. Becker, Gray & Co. (C. A.) [1916], 2 Ch., 86: Tingley v. 
 Muller [1917], 2 Ch., 144 (sales); Seliijman v. Eagle Insurance Co. [1917], 1 Ch., 519 (insurance). 
 
 no S. J. & E. Fellows (Ltd.) v. Corker [1918], 1 Ch., 9: Thompson Bros. & Co. v. Amis [1917], 2 Ch.. 211. 
 But see William Hollins & Co. v. Paget [1917], 1 Ch., 187. 
 
 "" (1918, K. B.) 144 L. T., 425.
 
 48 THE DECLARATORY JUDGMENT. 
 
 freight contracts. In one, a ship bound from Tampa, Fla., to Ham- 
 burg was compelled by the outbreak of war to put into an English 
 port, and the owners sought a declaration that as the further prose- 
 cution of the voyage became illegal, they were entitled to freight 
 money from the defendants. 312 In the other, the master had aban- 
 doned a torpedoed ship which was ultimately brought into port by 
 salvors. The owners of certain cargo on board sought a declaration, 
 which was granted, that in view of the master's abandonment, they 
 were entitled to the cargo without payment of freight. 313 
 
 Statutes. Statutes, executive regulations, and ordinances are some- 
 what analogous to written instruments, and their construction or 
 interpretation has frequently been involved in the course of actions for 
 a declaration of jural relations. The Scotch courts have said that 
 they will not make abstract interpretations of statutes ; 314 this is prob- 
 ably true of all courts. But if the determination of a certain right, 
 privilege, power, or immunity requires the construction or interpreta- 
 tion of a statute, there seems no valid reason why it should not be 
 made in declaratory actions as it is in executory actions. 315 
 
 Among recent declaratory judgments in England which directly 
 involved the construction of statutes we may mention In re Monck- 
 ton's Settlement, 316 determining that plaintiff had the power of a 
 tenant for life under the Land Settlements Acts, 1882 and 1890; Flint 
 v. Attorney General, 317 declaring that plaintiff as a minister was not 
 exempt from military service under the Army Act, 1881, and Military 
 Service Act,' 1916 ; In re Moxon, 318 declaring that the applicant trustee 
 had the power to appoint the public trustee as sole trustee in his stead 
 under the Trustee Act, 1893; In re Renishaw Iron Co. (Ltd.), 319 declar- 
 ing that workmen could bring actions under the Workmen's Com- 
 pensation Act, 1906, directly against the insurance companies with 
 whom their bankrupt employers had insured their liability to compen- 
 sation; and other cases too numerous to mention in detail. 320 
 
 Such actions have long been customary in Scotland, where declara- 
 tions of liability or disability have been sought and maintained against 
 public authorities under the Canal Act, 321 the Railway Act, 322 the 
 Burgh Police (Scotland) Act, 1892, 323 and other acts. 324 Declarator 
 appears to be the usualprocedure in Scotland for trying the legality 
 of the acts of public officers. 
 
 i St. Enoch Shipping Co. (Ltd.) v. Phosphate Mining Co. [1916], 2 K. B., 624. 
 
 - Newsmn v. Bradley (1917, C. A.), 118 L. T., 78. For the interpretation of certain other contracts 
 see In re Blalce [1917], 1 Ch., 18 (effect of unexecuted contract of sale on a testator's property, whether it 
 was realty or personalty); Dyson v. Peat [1917], 1 Ch., 99 (agency). For an interesting German case see 
 (1S37) 4D R. G., 97 (contract of two former partners not to engage in competing business: one sought a 
 declaration that he was privileged to become an employee without violating the contract; it was not 
 granted). 
 
 > Balfour v. Malcolm (1842), 1 Bell Apn., 163; Todd and Higginbotham v. Burnet (1854), 16 D., 794. 
 
 si- This was expressly held in the Scotch case of Sullivan v. Close (1898), 6 Sc. L. T., 2, "if the pursuer 
 [plaintilT] shows an interest to have the meaning declared." See the English Act of 1850, supra, p. 7. 
 
 [1917] 1 Ch., 224. 
 
 M' [19isj 1 Ch., 216. 
 
 MI [1916] 2 Ch., 595. 
 
 M'[l17] iCh., 199. 
 
 > See in re Wells and Hopkinson's Contract [1916] 2 Ch. 289; In re Scott (C. A.) [1916] 2 Ch. 268; Taff 
 Vale liy. Co. v. Cardiff Ry. Co. (C.A.) [1917] 1 Ch. 299; Ellis v. Duke of Bedford (C. A.) [1899] 1 Ch. 499, 
 515. 
 
 *' Ma?donell v. Caledonian Canal Commissioners (1830), 8 S. 881; Tennant v. Turner (1837) 16 S. 192. 
 
 M i ilasgow City & Dist. Ry. Co. v. Magistrates of Glasgow (1884) 11 R. 1110. 
 
 wa Teanent v. Commissioners (1894), 31 Sc. L. Rep., 619. 
 
 "< eith Police Commissioners v. Campbell (1866), 5 M., 251; British Fisheries Soc. v. Magistrates of Wick 
 (1<72), 10 M., 426; Stewart v. Parochial Board of Keith (1869), 8 M., 26; Hogg u. Parochial Board of Auchter- 
 m iciity (ISbO), 7 R., 986.
 
 THE DECLARATORY JUDGMENT. 49 
 
 The validity or effect of various executive regulations has recently 
 been under examination in declaratory actions brought by private indi- 
 viduals whose privileges or immunities depended upon the construc- 
 tion of such regulations or the legality of powers exercised under 
 them. 325 The determination of the invalidity of a municipal ordinance 
 is occasionally sought by declaratory action. 326 
 
 Probably in no other country is legislation so frequently held uncon- 
 stitutional as in the United States. Judgments holding statutes or 
 ordinances unconstitutional are in effect declaratory. In practice, 
 however, the judgment usually includes some decree, though preceded 
 by a declaration. The power to render declaratory judgments might 
 have shortened considerably the complicated procedure by way of 
 injunction, already litigated before three different courts, 327 through 
 which the New York American is endeavoring to prevent the enforce- 
 ment of different ordinances enacted by the municipal authorities of 
 Mount Vernon, N. Y., designed to bar the Hearst newspapers from 
 sale in Mount Vernon. The actual issue involves merely the consti- 
 tutionality of the principal ordinance. In countries having a similar 
 system of judicial control over legislation, the unconstitutionality of a 
 particular statute has been maintained in the form of a declaratory 
 action and judgment. 328 
 
 Even the meaning of the judgment or decree of a court 329 or of the 
 ambiguous award of arbitrators 330 may be sought by declaratory 
 action. It is doubtful, however, whether its validity can be attacked 
 in this form, 331 inasmuch as codes of procedure usually provide means 
 for setting aside invalid judgments or awards. 
 
 TITLE TO PROPERTY. 
 
 One of the questions for the determination of which the declaratory 
 judgment has proved most adaptable is the matter of conflicting or 
 doubtful claims of title to land or of any right, privilege, power, or 
 immunity with respect to land. The history of the simplification of 
 procedure for trying title encourages the hope that the more general 
 reform in procedure involved in the declaratory judgment will ulti- 
 mately obtain sufficient support to secure its legislative recogniton. 
 From the former very technical real action by which questions of 
 
 *> Whether a certa in regulation came into effect at the date of its signature or of its publication, Johnson 
 v. Sargent & Sons (1917, K.. B.), 118 L. T., 95; effect of treasury regulations for deposit of securities, In re 
 Oppenheimer [1917], 1 Ch., 274; claimant's privilege of not giving certain information under a printed 
 form to Inland Revenue Commissioners, Dvson v. Attorney General (C. A.) [1911] 1 K. B., 410; invalidity 
 of regulations of shipping controller requisitioning services (not ships) of owners and appropriating their 
 profits, China Mutual Steam Navigation Co. (I td.) v. Mac! ay [1918], 1 K. B., 33. 
 
 MS See Bourgon v. Township of Cumberland (1910), 22 Ont. L. Rep., 256. Hair v. Town of Medford (1914 
 A. P.), 31 Ont. L. Rep., 124. 
 
 ' Star Co. v. Brush, N. Y. Law Journal, Sept. 12, 1918. 
 
 a" See Colonial Sugar Refining Co. v. Any. Gen. (1912), Australia 15 C. L. R., 182. The Ontario Judica- 
 ture Act (R. 8. 0. 1914, c. 56, sec. 20) authorizes the Supreme Court at the instance of the Attorney General 
 for Canada or of Ontario to make a " declaration as to the validity of any statute * * * though no further 
 relief be prayed or sought." See Atty. Gen. for Canada v. Atty. Gen. of Ontario (1893), 23 Can. S. C., 458, 
 and annotations of this section in Snider's Annotations (1914), p. 102. This is in the nature of an advisory 
 opinion, although the st .tute calles it a "judgment." Under the United States Constitution such a 
 declaration would ha/et j involve a litigated "case" or "controversy" between private parties. Muskrat 
 v. United States (1911), 219 U.S. 346, 41 Sup. Ct. 250. In Shredded Wheat Co. v. City of Elgin (1918, 111.), 
 120 N. E., 218, the plaintiff sought to enjoin the enforcement of a municipal ordinance on the ground of 
 its unconstitutionaiity. The court refused to pass upon the ordinance until the plaintiff had undertaken 
 to violate it and prosecution been begun to recover a penalty under it. If invalid, said the court, the prosecu- 
 tion would fail and the plaintiff would not be injured; if valid, there was no ground on which its enforce- 
 ment should be enjoined. The benefits of the declaratory jud onent procedure in such a case are apparent. 
 
 w Ross v. At iCKcn ie 1,1836), 14 S.. 845; Parke's Curator (Barstow) v. Black (1870), 8 M., 671. 
 
 MO Lofthouse C )lliery v. Ogden 11913], 3 K. B., 120. 
 
 i Although this has" been done in India, where judgment was rendered against a minor without appoint- 
 ment of a guar^i'in ad litem. Purno v, Maharajadhiraj (1913), 18 Calcutta L. J., 18. 
 
 10790819 4
 
 50 THE DECLARATORY JUDGMENT. 
 
 ownership of realty were decided we came to the mixed action of 
 ejectment, used first to decide questions of possession and then indi- 
 rectly to determine questions 01 title under the fiction of a decision 
 merely as to the right of possession. 332 While in some of our States 
 this is still the method of trying the title to land, England has not 
 stopped her progress. The action for the recovery of land under the 
 Judicature Acts, while primarily directed to the recovery of possession, 
 also enabled the plaintiff to apply for a declaration that he is entitled 
 to the land, while a claimant to possession in fee simple has been able 
 to do so since 1862. 333 Since 1883, the usual method of trying title 
 or any of the constituent jural relations with respect to land, e. g., the 
 right to walk over another's land or the privilege of freedom from the 
 right of another, has been by declaratory action. The equitable biHs 
 to quiet title and particularly the bill to remove cloud from title, to- 
 gether with the modern statutory suit to quiet title, serve in many of 
 our States to try disputed questions of title. 934 But these remedies 
 are subject to various limitations, and the two former serve only as 
 incidental to some executory relief. The statutory suit to quiet 
 title, which in some States (e. g., Connecticut), includes within its 
 purview personal as well as real property and may be instituted by a 
 person in or out of possession claiming any kind of contested interest 
 m the land, offers a close approach to the action for declaration of 
 title, and should be adopted by all of our States. 
 
 The questions relating to rights and other legal relations in respect 
 to property determined by declaratory judgment often, although by 
 no means usually, arise under wills or settlements, and to some extent 
 have already been considered. They may be brought to determine 
 adverse claims to the same interest in the land, by the person in or 
 out of possession or claiming some interest in order to obtain a deter- 
 mination and confirmation of his interest or of his freedom from 
 interference with that interest by some adverse claimant. 
 
 Among adverse claimants to the same interest, questions of con- 
 flicting title frequently come before land registration officers in 
 countries where the State determines, registers, and guarantees the 
 title. In this country, whore the Torrens system is not yet compul- 
 sory, and in England, this kind of declaration is of little importance. 
 In Ireland the Landed Estates (and Land Judges') Court has jurisdic- 
 tion to make declarations of title. In India the question is fre- 
 quently raised under section 283 of the code of civil procedure by 
 persons claiming interests in property under attachment; in this 
 country that is possible in some States by sheriff's jury. 335 But in 
 India no declaration of title can be obtained by virtue of the general 
 power to make declaratory decrees under the Specific Relief Act if the 
 plaintiff might have obtained any coercive relief. Under section 17 
 <of the English Married Women's Property Act, 1882, if a question 
 arises between husband and wife as to the title or possession of prop- 
 erty, either party may apply by originating summons for an order 
 determining such question. 336 We have already adverted to the 
 fact that in many of our States the statutory suit to quiet title serves 
 as the best means of trying disputed questions of title. 
 
 ' See Segdwiek and Wait, The History of the Action of Ejectment, in 3 Essays in Anglo-American 
 Legal History, 611, 636. 
 
 " 25 & 26 Viet. ch. 67, sec. 48. See also Gledhill v. Hunter (1880), 14 Ch. D., 492. 
 M Supra, p. 30. 
 *> Supra, p. 29. 
 " In re Married Women's Property Act, 1882 (C. A.) [1917], 2 K. D., 72.
 
 THE DECLARATORY JUDGMENT. 51 
 
 Declaratory judgments upon adverse claims to interests in land 
 have dealt with many varieties of questions, including conflicting 
 claims'by the public and by private individuals to the fee of a road, 
 one asserting it to be a public, the other a private road; 337 conflicting 
 claims of private individuals to the same realty 338 or to the same 
 privilege under lease or license. 339 
 
 Declarations have also been sought to determine the nature of the 
 claimant's interest in certain land, e. g., of a reversionary lessee whose 
 term was to commence more than twenty-one years after its date ; 34 
 the amount of claimant's share in property; 341 or the quantity, 
 quality, or priority of plaintiff's or defendant's tenure 342 or interest. 343 
 
 It often becomes of importance to a person who claims title to 
 land and the power to convey it to obtain from a court a judicial 
 declaration and confirmation of his title as an assurance to a prospec- 
 tive vendee that he is not purchasing a defective or unmarketable 
 title. This valuable function of the declaratory judgment has been 
 invoked on several occasions, generally by the vendor 344 but occa- 
 sionally by the vendee who asks a declaration that he is under no 
 duty to take a defective title. 345 Often such a request for a confir- 
 mation of title serves merely purposes of general assurance, 346 but it 
 is probable that it will not be granted unless the title is in danger of 
 question or attack. 347 Reference has already been made to the fact 
 that in some jurisdictions a claimant to title by adverse possession 
 may obtain a judicial confirmation of his title. 348 
 
 The action for the establishment of title or of some incidental legal 
 relation is often brought in the form of a request for a negative dec- 
 laration of privilege or immunity as against the defendant. Before 
 1883, such an assertion of privilege or immunity was not granted in 
 England, because the plaintiff was said to have no cause of action. 
 Only by the equitable remedy of removal of cloud from title, within 
 its limited scope and conditions, was relief obtainable. So in Rooke v. 
 Kensington, 349 where the plaintiff asked a declaration that his legal 
 
 " Gooderham . City of Toronto (1891), 21 O. R., 120; 19 A. R., 641; The Mayor, etc., of Lower Hutt v. 
 Yerex (1904, N. Z.), 24 S. C., 697; Chuni v. Ram (1888), 15 Indian L. Rep., Calcutta, 460. 
 
 sss In re Alston [1917] 2 Ch. 226; In re Bogg |1917] 2 Ch. 349; Grierson v. Sandstring School Board (1882) 
 9 R. 437; Redman v. Permanent Trustee Co. (1917, N. S. W.) 17 St. R. 60; Nasir v. Arman (1912), 17 Cal- 
 cutta L. J. 118; Rameshevar v. Provabati (1914), 20 Calcutta L. J. 23: (1900) 48 R. G., 367, 370. 
 
 339 North Pacific Lumber Co. Ltd. v. British-American Trust Co. Ltd. (1915), 23 Br. Col., 332; (1898) 41 
 R. G., 345. The German courts at one time espoused the view that there was no "legal relation" between 
 two adverse claimants to the same res. 
 
 8 Mann, Grossman & Panlin, Ltd., v. Registrar of Land Registryf 1918], 1 Ch., 202. 
 
 8<i Kennedy v. Dodson [1895], 1 Ch. 334; Boboo v. Mitarjit (1872), 8 Bengal L. R., 382; Brij v. Durga (1898), 
 20 Indian L. Rep., Allahabad, 258. 
 
 s Kali . Golam (1886), 13 Indian L. Rep., Calcutta, 3; Re Darnley's Estate (1870, Ireland), 3 Irish L. T., 
 Misc. 741. 
 
 s Gascoigne v. Gascoigne [1918], 1 K. B. 223 (that defendant held title as trustee for plaintiff). See 
 Donohoe . Rogers (1914), 168 Cal. 700, 144 Pac.,958; Porten v. Peterson (1918) Minn.), 166 N. W 184 (that 
 plaintiffs were equitable mortgagees). See also Hodge v. Atty. Gen. (1838), 3 Young & Co.. 342. In re Bogg 
 11917], 2 Ch. 239 (that certain land was subject to a use, or as in Norman v. Johnson ( 1860), 6 Jur. n. s. 905, to a 
 lien to the amount of an annuity); the priority of plaintiff's claim over a certain mortgage (Pearce v. Bulteel 
 [1916], 2 Ch., 544); whether certain property was to be treated as realty or personalty (In re Alston 11917], 
 2 Ch., 226); whether there was a merger of estates (In re Fletcher [1917], 1 Ch. 147). 
 
 8 Declaration that plaintiff had power of tenant for life and could as such give good title (In re Trafford's 
 Settled Estates [1915], 1 Ch., 9). See also In re Burroughs- Fowler [1916], 2 Ch., 251. That trustees had power 
 to give good title to a life-rent (Chaplin's Trustees v. Hoile (1890). 28 SL. R., 51 ). Earl of Mansfield v. Stewart 
 (1846), 5 Bell's App., 158. Goburdhun P. Munnoo (1871), 15 W. R., 95. See illustrations (6), (e), (/), and 
 (g) under sec. 42 of the Indian Specific Relief Act, 1877, Collett, op. cit. 221. 
 
 345 In re Wills & Hopkinson's Contract [1916], 2 Ch., 289. 
 
 4 See statute of (1862) 25 and 26 Viet., ch. 67, sec. 48: and Gledhill v. Hunter (1880), 14 Ch. D., 492; In re 
 Kenny's Estate [1897], 1 I. R., 318; Billing v. Welch (1870, Ir.), 6 Q. B., 64; Chunia v. Ramdial (1877), 1 
 Indian L. Rep., Allahabad, 360. Declaration that claimant was a mortgagee: Gabin v. Udai (1870) 6 Ben- 
 gal L R., 320. That plaintiff was lessee under a valid and subsisting lease: West v. Gwynne [1911], 2 Ch. 1; 
 Cornish v. Boles (1914, A. D.), 31 Ont. L. Rep., 505. 
 
 847 Earl of Galloway v. Garlies (1838) 16 S., 1212; Magistrates of Edinburgh v. Warrender (1863), 1 M., 887. 
 See also TheManar [1903], P. 95. 
 
 848 Supra, p. 31. 
 
 (1856) 2 K. & J., 753, 760, 761.
 
 52 THE DECLARATORY JTJDGTtiEE'NT. 
 
 title was unaffected by an equitable claim of the defendant of which he 
 had no notice when he acquired the legal title, the declaration was 
 refused. Such declarations may now be made. 350 So whenever one's 
 title is placed in jeopardy by some act or claim of another, a suit will 
 lie for a declaration that such act or claim is void as against the plain- 
 tiff. Thus in India, declarations are frequently asked and made that 
 attempted alienations or adoptions, impairing the interests of rever- 
 sioners, are void, 351 or that trespassers under claim of right have no 
 right. 352 In Austen v. Collins, 353 often cited under the head of declara- 
 tory judgments, a tenant for life obtained a declaration that his life- 
 estate had not been divested by his noncompliance with a certain 
 clause under a will, the failure having been due to circumstances 
 beyond his control. 
 
 An excellent illustration of the efficacy of the declaratory action 
 to settle disputed rights without stirring up legal hostilities lies in 
 the field of easements and servitudes. "With certain limited statutory 
 exceptions, the present method of trying disputed claims to easements 
 is for the claimant of the easement to endeavor to enjoin the owner 
 of the land from interfering with his easement and in addition to sue 
 for damages if he does, or for the owner of the land to take similar 
 steps to protect himself or secure redress. Only then can a court 
 determine whether in fact there existed a valid easement, the only 
 matter in issue. In the Roman law, the person claiming a servitude 
 had an actio in rem confessoria, the owner of the land disputing the 
 servitude an actio in rem negatoria. In countries enjoying the 
 benefits of declaratory procedure, such questions are generally tried 
 by declaratory action. Thus, claimants to a right of way, 354 to sub- 
 terranean support of surface lands, 355 to the use of the foreshore, 356 
 and to the unimpeded flow of water 357 have brought declaratory 
 actions to confirm their claims. On the other hand, the owners of 
 land have sought declarations of privilege and right to the effect 
 that defendants had no right of way, 358 no right and no privilege to 
 run their rain-water on plaintiff's land, 359 or to send their sewage 
 through plaintiff's sewer, 360 no easement of light, 361 or no servitude 
 over plaintiff's land. 382 
 
 Questions of title to personal property may likewise be tried by 
 declaratory action, either in the affirmative or in the negative form. 
 Thus during the present war the British Admiralty has frequently 
 requisitioned ships under charter, and the question as to the respec- 
 tive right of owner and charterer to the compensation due has been 
 
 Fing Ping Shun v. Tong Shun (P. C.) [1918], A. C., 403; Bollard v. Ollivier (1881, N. Z.), 1 S. C. R. 
 197. 
 
 si Venkatanarayana v. Subbamune (1915), L. R. 42, Indian App. 125. See Illustrations (e) and (/) to sec. 
 42 of Specific Relief Act, Collett, op. cit., 222. 
 
 a Bissessuri v. Baroda (1884), 10 Indian L. Rep.. Calcutta, 1076; Sarat v. Nritya (1910), 13 Calcutta L. J. 
 284. See also Collis v. Amphlett (C. A.) [1918], 1 Ch., 232. 
 
 ** (1886, Ch.), 54 L. T., 903. 
 
 < Nicholls v. Nicholls (1899, Ch.), 81 L. T., 811; Gooderham v. City of Toronto (1891), 21 O. R., 120; 
 19 A. R., 64; In re Jameson's Estate [18951, Ir. L. R., 469. 
 
 * Davies v. Powell Duffryn Steam Coal Co. [1917], 1 Ch., 488. 
 
 Champion and White v. City of Vancouver (1916), 23 Br. Col., 221. 
 
 " Wuzeerooddeen v. Sheobund (1869), 11 W. R., 285. 
 
 a* Taff Vale Ry. Co. v. Cardiff Ry. Co. (C. A.), [1917], 1 Ch., 299; Thornhill . Weeks [1913], 1 Ch., 438, 
 464; Magistrates of Edinburgh v. Warrender (1863), 1 M., 887. See illustration (6) to sec. 42 of Indian 
 Specific Relief Act, Collett, op. cit. 221. 
 
 Fay v. Prentice (1845), 1 C. B.. 828. 
 
 Islington Vestry v. Hornsey U. D. C. (C. A.) [1900], 1 Ch., 695. 
 
 M 1 Ankerson v. Connelly [190IY], 2 Ch. 544; [1907], 1 Ch., 678. 
 
 ** Llandudno U. D. C. v. Woods [1899], 2 Ch., 705 (to hold religious services on plaintiff's seashore); 
 Surjamani v. Shaik (1912), 15 Calcutta L. J., 36, notes. Rights of easement or servitude are triable by 
 declaration in Germany, Petersen, op. cit., 499.
 
 THE DECLAKATORY JUDGMENT. 53 
 
 settled by declaratory action between the two claimants. 363 Conflict- 
 ing questions of title to certain funds as between private individu- 
 als 3<l4 or between private individuals and the Government, 365 or of 
 title to specific chattels, 366 may be determined by declaratory judg- 
 ment. Questions of priority of different classes of creditors, e. g., 
 mortgagees and material men of a ship, 367 and adverse questions of 
 title to choses in action, 368 have also been determined by this pro- 
 cedure. Declaratory actions have been brought to try the title to 
 such authorized monopolies as patent, 369 copyright, 370 or trade-mark 371 
 privileges and other franchises. 372 
 
 OBLIGATIONS NOT CONTRACTUAL. 
 
 Aside from the various classes of questions above presented which 
 have proved themselves eminently suited to solution by declaratory 
 action, other questions of more miscellaneous character may, for 
 purposes of presentation, be grouped under the general, if not always 
 juristically accurate, classification of noncontractual obligations. 
 These will include questions of administrative law arising between 
 the state and the individual. As a matter of arrangement the cases 
 will be grouped according to the principal jural relation which was 
 placed in issue, so that the discussion will follow the order of affirma- 
 tive declarations of right or duty, power or liability, and negative 
 declarations of privilege or no right, immunity or disability. It may 
 again be observed that frequently one principal jural relation is 
 placed in issue for the purpose of proving the existence of other 
 jural relations, and the declaration of one pair of jural relations, 
 such as a right and its correlative duty, will practically always imply 
 the existence of other pairs of relations. 
 
 The declaration of right proper, or one's affirmative claim to the 
 performance of a duty by another, is illustrated in declaratory actions 
 by the assertion of a right to recover moneys due the plaintiff, e. g., a 
 declaration that the principal had a right to the secret commissions 
 received by his agent from persons dealing with the principal 373 or that 
 the officers and crew of certain warships had a right to prize money 
 or to share in prize money already awarded 374 or to recover the value 
 
 3M London-American Maritime Tr. Co. v. Rio de Janeiro Tramway, etc., Co. [1917], 2 K. B., 611; Chines* 
 Mining, etc., Co. v. Sale & Co. [1917], 2 K. B., 599. 
 
 s< Davidson v. Davidson (1906), 14 S. L. T., 337. 
 
 **> Robson v. Atty.-Gen. [1917], 2 Ch., 18. 
 
 sw Rawlinson v. Mort (1905), 93 L. T.. 555; Pritchett v. Currie (C. A.), [1916], 2 Ch., 515. In India, this 
 even includes questions of conflicting claims to the possession of a wife. Vumanabai v. Narayan (1876), 
 1 Indian L. Rep., Bombay, 164, 167. For Germany, see (1899), 44 R. G., 163, 165. 
 
 i" The Manar [1903], P., 95. See also sec. 146 of the German Bankruptcy Code. 
 
 S8S Shares of stock, Coleman v. London County, etc., Bank [1916], 2 Ch., 353. Policies of insurance, 
 Seligman v. Eagle Insurance Co. [1917], 1 Ch., 519. Whether a certain claim was part of judgment debtor'! 
 assets. Steward v. Guibord (1903). 6 Ont. L. Rep., 262. 
 
 N. E. Marine Engineering Co. v. Leeds Forge Co. [1906], 1 Ch., 324, where the plaintiffs claimed a 
 declaration that defendants' patent was invalid, and that the former had not infringed any legal rights 
 of the latter. The declaration was denied because there was a statutory way of trying the question. But 
 the principle of such actions was admitted. Why should it be necessary for a new patentee to build a 
 factory and begin manufacturing an article and causing injury before a contesting older patentee alleging 
 interference can bring his action? Why should not either one of them, before any expense is incurred 
 or damage is caused, be able to test the validity of their conflicting claims by declaratory action? 
 n 8'<> British Actors Film Co., Ltd., v. Glover [1918], 1 K. B., 299. 
 
 *! Bruce v. Commonwealth Trademark Label Asso. (1907, Aus.), 4 C. L. R., 1569. For a case in Ger- 
 many, see (1905) 61 R. G., 18, 19. 
 
 s Hammerton v. Earl of Dysart (H. L.) [1916], 1 A. C., 57 (a ferry franchise). Jurisdiction by declaration 
 was denied in Queansland on a question of contested title to an office in a voluntary association; Murray 
 v. Parnell (1909), Q. S. C., 65. But a public officer in Scotland was allowed to test his title to the office 
 be declarator. Goldie v. Christie & Petrie (1868), 6 M., 541. In England and the United States the writ 
 of quo warranto is the procedure adopted for this purpose. 
 
 373 Powell v. Jones [1905], 1 K. B., 11. 
 
 "< In the matter of the German Cruiser Konigsberg [1917], P., 174; In re the Battle of the Falkland 
 Islands [1917], P., 47.
 
 54 THE DECLARATORY JUDGMENT. 
 
 of requisitioned ships lost by the government. 375 It will be observed 
 that declaratory actions may be brought against the government, 
 although necessarily begun by petition of right or statutory permis- 
 sion, and it may be said that in England and in the United States 
 Court of Claims a declaratory judgment is the only form of judgment 
 that can be rendered against the government, for the court has no 
 power to make an executory decree. 
 
 This same advantage of the plaintiff may be demanded in the form 
 of a declaration of the defendant's duty to do something for the bene- 
 fit of the plaintiff, either to pay a sum of money 378 or to do some 
 specific act, 377 to bear a particular burden, 378 or to forbear from some 
 particular act. Thus, wnere a newspaper reporter sought a declara- 
 tion of his right and privilege to enter a public building, the city hall, 
 it was held that the defendant mayor had no right that he should keep 
 out and no privilege to keep him out (i. e., was under a duty to refrain 
 from keeping him out. 379 Declarations have been asked and main- 
 tained of the defendant's [secondary] duty to make good any losses 
 which the plaintiff company might sustain now or in the future because 
 of the defendant director's negligent conduct of its affairs 380 or because 
 of the defendant's continuing negligence. 381 If the act and the result- 
 ing duty are complete, although the damages can not yet be estimated, 
 the declaration would of course be a declaration of duty. 382 
 
 The declaration of the plaintiff's power is illustrated by such cases 
 as those already mentioned of a life-tenant who asserts his power of 
 alienation 383 or of a lessee who asserts his power of assignment of the 
 lease without consent of the lessor. 384 
 
 Declarations of the defendant's liability in the technical conceptual 
 sense of that term are infrequent. Those cases in which the court has 
 declared that the defandant is liable to certain duties provided the 
 plaintiff exercises his power to convert this liability into a duty are 
 illustrations. Thus, where the court declared that the defendant 
 was bound to pay a certain sum provided the plaintiff tendered a 
 receipt, 385 or that the defendant was under a duty to furnish wood 
 from his estate if, as, and when the plaintiff municipality requested 
 it, 388 or that the defendant father was under a duty to furnish his 
 plaintiff daughter with an outfit when she married, 387 declarations of 
 liability as well as of conditional duty were made. In these cases the 
 power to convert the liability into a duty resided in the plaintiff, but 
 we believe the jural relation to be the same if the power is vested in 
 a third person. Thus, where a fraternal benefit society asked a dec- 
 
 * British & Foreign Steamship Co. v. The King [1917], 2 K. B., 769. For German cases between private 
 .individuals, see (1903) 55 R. G., 158, 160; (1911) 75 R. G., 406. 
 
 376 Atty. Gen. v. Watson [1917], 2 K. B., 427 (the payment of estate tax). Carlton Main Colliery Co. v. 
 Clawley (C. A.) [1917], 2 K. B., 691 (Sums payable to dependents under Workmen's Compensation Act, 
 1906). So questions of the incidence of the duty to pay taxes may be tried by declaratory action. In re 
 Smyth [1917], 2 Ch., 331; In re Scott (C. A.) [1916], 2 Ch., 268. 
 
 * To keep and maintain a highway of a certain construction and strength. Atty. Gen. v. Scott (1904, 
 K. B.), 20 T. L. R., 630, 633. To convey to the equitable mortgagees (plaintiffs) a legal mortgage. In re 
 Smith [1916], 2 Ch., 206. 
 
 378 To bear certain charges for public improvements made by the city. Corp. of Bristol v. Sinnott [19171, 
 2 Ch., 340. 
 
 ** Journal Printing Co. v. McVeity (1915), 33 Ont. L. Rep., 166. 
 
 88 In re Dominion Trust Co. and Machray (1916). 23 Br. Col., 401. 
 
 * Evans v. Manchester, etc.. Ry. Co. (1887), 36 Ch. D., 626, 640; Azeeza v. The Corporation of Calcutta 
 (1916), 24 Calcutta L. J., 562 (duty to compensate for loss which might be sustained through defendant's- 
 subsequent removal of certain fixtures). 
 
 382 (1885) 13 R. G., 372. 
 
 * Supra, cases cited in note 344. 
 
 'w Supra, cases cited in note 284. 
 
 ** Morton et al. v. Smith (1864). 3 M., 29. ' 
 
 a* 8 (1898) 41 R. G., 369. 
 
 (1901) 49 R. G., 370.
 
 THE DECLARATORY JUDGMENT. 55 
 
 laration against the state that the latter was liable to make good any 
 losses which the plaintiff society might have to meet in the future 
 because of then undisclosed claims of third persons (members) injured 
 in a railroad accident caused by the | state's negligence, a case of lia- 
 bility is presented. 388 Perhaps the declarations asked by prospective 
 tax payers of what their liability to taxes will be in different dis- 
 tricts 389 may be classified under the head of liability. 
 
 Probably a greater interest in the use of the declaratory judgment 
 lies in its power to settle questions of privilege or no-right, immunity 
 or disability, where the plaintiff may or may not have any affirmative 
 cause of action, but asks for a declaration in the negative form either 
 that he himself is under no duty to (freedom from the right of) the 
 defendant or that he is under no liability to (immunity from) the 
 defendant's power or control or else he may assert that the defendant 
 has no-right against the plaintiff or has no power over (disability 
 against) him or his jural relations. These various negative forms of 
 declaration warrant closer examination. 
 
 The only reason for classifying the assertion of a plaintiff's privi- 
 lege among negative forms of declaration is because the court's 
 finding is practically always pronounced in the form of the defendant's 
 no-right that the plaintiff shall not act in accordance with his privilege, 
 or of the no-duty of the plaintiff to the defendant. Otherwise, there 
 is nothing inherently negative about a privilege. 
 
 Illustration (g) to section 42 of the Indian Specific Relief Act reads 
 as follows: 
 
 A is in possession of certain property. B, alleging that he is the owner of the prop- 
 erty, requires A to deliver it to him. A may obtain a declaration of his right [privi- 
 lege] to hold the property. 
 
 But the court's declaration in practice will be in the negative form 
 either that A is under no duty to deliver it to B, or that B has no right 
 to the property. It will be recalled that when a privilege not ex- 
 pressly limited by license is actively contested or its enjoyment ob- 
 structed it merges, as against the person interfering, into a right. 
 
 The assertion of privilege in the form of plaintiff's no-duty is illus- 
 trated by the case of Guaranty Trust Co. v. Hannay 39 in which the 
 plaintiffs sought a declaration that they were under no duty to 
 return to the defendants certain sums which had been paid to them. 
 The same form of declaration is illustrated by such cases as the fol- 
 lowing: the plaintiff claims that a certain contract is no longer 
 binding on him; 391 that he is under no duty to answer certain ques- 
 tions or produce certain documents asked by a legislative commis- 
 sion; 392 that he is under no duty to make certain returns on forms 
 submitted by the commissioner of internal revenue 393 this case also 
 involved a declaration of immunity inasmuch as the plaintiff con- 
 tended that the form was ultra vires (no power). We have mentioned 
 already a case in Germany in which a washing powder placed on the 
 market by the plaintiff was alleged by defendant to have injured 
 her eyes, whereupon plaintiff asked for a declaration that she was 
 
 (1905) 61 R. G., 164, 166. 
 
 89 Edinburgh & Glasgow Ry. Co. v. Meek (1849), 12 D., 153. 
 390 (C. A.) [1015], 2 K. B., 53rt. 
 si Supra, note 301. 
 
 39J Cobni.il Sugar Reining Co., Ltd. v. The Atty. Gen. (1912. Aus.), 15 C. L. R., 182. 
 333 D/san v. Atty. Gen. [1911], 1 K. B., 410; (C. A.) [1912] 1 Ch. 158, 167; Burghes r. Atty. Gen. [1911] 2 
 Ch. 139, 155; (C. A.) [1912] 1 Ch. 173.
 
 56 THE DECLARATORY JUDGMENT. 
 
 under no duty to make good the damage defendant may have sus- 
 tained. 394 
 
 Privilege, as already observed, is frequently asserted in the form 
 of no right of the defendant. Thus, we have seen that the owner of 
 land 'may, as plaintiff, seek a declaration that the defendant has no 
 easement or servitude over his land. 395 So also, an alleged debtor 
 against whom a claim is asserted may seek a declaration that his 
 alleged creditor has no claim (right) against him 39fl or no right to 
 assert any other demand to the detriment of the plaintiff. 397 So, 
 where steamship owners asserted their privilege of operating a certain 
 steamer then en route for their own account and of keeping the profits 
 in spite of the shipping controller's requisition of the ship, it was 
 held that the controller had no right to the plaintiff 's services and 
 to the running accounts, but that his rights against the plaintiffs 
 arose only after the completion of the ship's voyage; until that time 
 the plaintiffs were privileged and immune from his regulations. 398 
 
 Many possibilities of extending this useful function of a declara- 
 tory judgment of privilege as an aid to the stability and security of 
 legal relations suggest themselves. For example, it was nearly 20 
 years after its enactment before the business world was able to learn 
 authoritatively what the Sherman law actually meant. For some 
 years before the decision of the first case the Department of Justice 
 had held the Sherman law like a sword of Damocles over the heads of 
 large business concerns entering into cooperative agreements, reor- 
 ganizations and combinations of various kinds and degree. Yet 
 when the Department of Justice was asked whether a specific agree- 
 ment was a violation of the law, the department could not and did 
 not answer, asserting first, that that was a question for private 
 counsel and secondly, a question for the courts. So the advice of 
 counsel was sought and their conjecture as to the meaning of the law 
 was followed ; and so these large organizations stumbled along carry- 
 ing enormous responsibilities in the hope that the law had not been 
 violated, until the Department of Justice got ready to try a few 
 test cases. Then came expensive litigation and an unscrambling of 
 many combinations, a process which represented business destruction 
 and uncertainty and an economic loss and waste impossible of calcu- 
 lation. Why should private business have been left for years in 
 such grave uncertainty ? Why should it not have been possible for 
 two or more business concerns contemplating a certain form of co- 
 operative reorganization, yet threatened by the Sherman law, to 
 assert their privilege to enter into and execute the proposed agree- 
 ments, citing the Attorney General as a defendant, and request from 
 the courts a declaration of their privilege to act and their right to no 
 interference and of the government's no-right that the concerns 
 should refrain from the execution of these agreements. Then the 
 sword would either have fallen or have been withdrawn and business 
 might have proceeded with some degree of certainty and security. 
 Thus, a simple procedure used as an instrument of preventive justice 
 
 *>< (1909) 71 R. G., 08. 
 
 *> 5 Supra, notes 358-3C2: and see Harrison v. Rutland [1893], 1 Q. B., 142. 
 
 (1899) 44 R. G 183; (1913) 82 R. G 170. 
 
 897 E. g., for a creditor to keep a special security against a hankrupt when he had proved his claim among 
 the general creditors: In re Pawson [1917] 2 K. B., 527; to keep plaintiff's name on the list of shareholders 
 when this is a disadvantage to plaintiff: Kinghornw. Glenyards Fireclay Co. Ltd., ()907, Sc.) 14 S. L. T.683. 
 
 398 China Mutual Steam .V.ws;ition Co., Ltd. v. MaoLay [1918] 1 K. B. 33.
 
 THE DECLARATORY JUDGMENT. 57 
 
 might have saved the community and private business untold loss, 
 inconvenience and uncertainty. 389 
 
 The last two jural relations which we have undertaken to discuss 
 are immunity (or no liability) and disability (or no power). They 
 find large room for application in the field of administrative law in 
 which private individuals may contest the validity of governmental 
 acts by asserting the diasbility of legislative or administrative author- 
 ities to promulgate such state acts or else their disability to enact or 
 issue them, respectively, in the manner pursued, and hence their own 
 immunity from any legal relations that purport to be created by such 
 unlawful or invalid state acts. These jural correlatives of immunity 
 and disability have also, however, as we shall presently see, consider- 
 able application in private legal relations. 
 
 The declaration of immunity or exemption from taxation has fre- 
 quently been the object of judicial determination, 400 although the com- 
 plete or partial invalidity of tax laws or of administrative powers exer- 
 cised under them is usually asserted in the form of a declaration of 
 the correlative jural relation of disability (no power). Exemption 
 from military service is an illustration of immunity, 401 as well as of the 
 privilege of not serving. 
 
 Declarations of disability of the defendant, while often combined 
 with declarations of immunity of the plaintiff, are nevertheless 
 emphasized as the principal jural relation in issue when the validity 
 of a state act is contested. Thus, declarations have been sought that 
 particular acts of governmental authorities were ultra vires (i. e., 
 that the authority had no power to create any new legal relations by 
 executing them), e. g., the repudiation of an agreement by the post- 
 master-general, 402 the issuance of certain -forms by the internal revenue 
 officers, 403 the requisitioning of certain services and profits of the 
 plaintiffs, 404 the expropriation of certain land, 405 the manner of can- 
 celling certain mining leases by the governor, 406 the method of impos- 
 ing taxes by local authorities, 407 and the manner of rejecting votes 
 by local officers. 408 So also declarations of disability have been sought 
 against the acts of private persons acting under private acts, charters 
 or agreements. Such declarations have been made against the power 
 of employers to make certain deductions from wages under the Truck 
 Act, 183 1, 409 of school authorities to exclude certain poor children, 410 
 
 s" This procedure has close analogy to the declaration of perpetual silence. The plaintiff cites the defend 
 ant who threatens him with a charge or with an action, and the court asks the defendant to prove his charge 
 or ever thereafter remain silent. This proceeding, of ancient origin, which is in force in many countries, 
 may be extended by us to alleviate many cf the crudities of our law of libel and slander, in which the neces- 
 sity of proving a pecuniary injury now constitutes such an important element for practical purposes. Mr. 
 Nathan, in 4 Common Law of South Africa, 2387, states, that ' 'it has been held that in a criminal prosecution 
 where a preliminary examinat ion has not been closed, an accused person is not entitled to a decree of per- 
 prtual silence against the Crown. TCx parte Bok (1880, Trans.), K., 223." This hardly constitutes a prec- 
 edent, however, against the preventive 'action here proposed. 
 
 * Re Smyth (1917, Ch. 0. A.), 117 L. T., 793; Ottawa Y. M. C. A. v. City of Ottawa (1913), 29 Ont. L. 
 Rep., 582; Atty. Gen. of Queensland v. Atty. Gen. for Commonwealth (1915), 20 C. L. R., 148; Hogg v, 
 Parochial Board of Auchtermuehty (1880), 7 R., 986. 
 
 < Flint v Atty. Gen. [1918],! Ch.,'210. See also London Assn. of Shipowners v. London & India Docks.etc. 
 [1892], 3 Ch., 242: that plaintills wero not liable (immune) to bear certain unlawful charges assessed upon 
 certain docks they might wish to use. 
 
 <IB Marconi's Wireless Telegraph Co. v. Rex (C. A.) [19181, 1 K. B., 193. 
 
 Burghes v. Atty. Gen. [1911] 2 Ch.. 139, 155; (C. A.) [1912], 1 Ch., 173. 
 
 W4 China Mutual Steam Navigation Co. v. MacLay [1918], 1 K. B., 33. 
 
 < Toronto Ry. Co. v. City of Toronto (1906), 13 Ont. L. Rep., 532:. although it was not granted, because 
 there was another way of testing the question. 
 
 < The Silver Peak Mines, Ltd. v. Williams (1917, N. S. W.), 17 St. R., 1. 
 
 w Elsdon v. Hampstead Corp. [1905], 2 Ch., 633; British Fisheries Soc. v. Magistrates of Wick (1872, Scot.), 
 10 M. 426. See a'.so Atty. Gen. v. Merthyr Tydfil Union (C. A.) [1900], 1 Ch., 516. 
 
 Atty. Gen. v. Counnl of the MunHp. of Canterbury (1917, N. S. W.), 17 St. Rep., 45. 
 
 <w Williams v. North's Navigation Collieries (H. L.) [19181. A. C., 136. 
 
 o Gatoshead Guardians v. Durham C. C. (C. A.) [1918], 1 Ch., 146; see also Ellis v. Duke of Bedford (C. A.) 
 1899], 1 Ch., 499: no power of the Duke to exclude hucksters from certain market stands.
 
 58 THE DECLAKATORY JUDGMENT. 
 
 of church authorities to pass a certain sentence of ouster upon a 
 minister, 411 of a corporation to make a certain mortgage and issue 
 certain bonds under it, *" of a dock corporation to promulgate certain 
 regulations under a private act, 413 of a stock-exchange committee to 
 exclude the plaintiff from membership. 414 In the absence of any 
 written instrument by which the court can judge the validity or pro- 
 priety of the acts of those bound by the instrument, declarations of 
 disability have been asked against persons who assumed to exercise 
 powers which did or might injure the plaintiff. Thus, we have seen 
 that reversioners and remaindermen may ask declarations of disability 
 against life tenants who seek to exercise powers of alienation, etc. r 
 which would impair their interests. 415 
 
 EFFECT OF DECLARATORY JUDGMENT. 
 
 Declaratory judgments operate as res judicata 416 and bind the 
 parties and tneir privies within the same limitations as attach to other 
 final judgments. Their force as judgments in rem in cases of status 
 and title to property is forfeited by the power of the court, in England, 
 at least, to bring before it any person who may be interested in the 
 matter in issue. They can not, of course, be executed, a feature which 
 constitutes their principal difference from executory judgments. In 
 the case of those judgments which declare a duty, a new action must 
 be founded on them to convert them into judgments on which execu- 
 tion can issue. But this point is more academic than practical, for it 
 rarely proves necessary to resort to this measure; and hi fact, when 
 some executory relief is desired in England, the demand for it is gen- 
 erally incorporated with the request for the declaration, Often, 
 indeed, the negative form of declaratory judgment of privilege or 
 immunity can not be followed by any form of coercive relief at all, the 
 mere declaration that the defendant has no claim against the plaintiff 
 satisfying all the plaintiff's requirements. Should the defendant, 
 nevertheless, subsequently bring an action, he would be met by the 
 plea of res judicata. The old judgment can only be reopened or 
 impeached in the same manner and under the same conditions as any 
 final executory judgment. 
 
 CONCLUSION. 
 
 The above survey of the many classes of cases for the solution of 
 which the declaratory judgment has proved an effective instrument 
 will have demonstrated that the courts have not exhausted their use- 
 fulness by the employment of their curative functions, but that there 
 remains a large field for the application of their preventive functions 
 which in this country has barely been touched. It will have become 
 evident that the social equilibrium, for whose maintenance law and 
 
 i Fraikelton v. Macqueen (1909, Queensland), S. C., 89. 
 
 Pacific Coast Coal Mines, Ltd. v. Arbuthnot (P. C.) [1917], A. C., 607. 
 
 '' London ASSD. of Shipowners v. London & India "Dooks Committee [1892], 3 Ch., 242. 
 
 < This declaration was asked, but not granted. Cassell v. Inglis [1916], 2 Ch., 211; Weinberger v Inglis 
 (1917. Ch.), 118 L. T., 208. 
 
 Supra, and illustrations (d), (e), and (f) of section 42 of the Indian Specific Relief Act. See also (1905) 
 61R.B.,18,19: declaration that defendant owners of a certain trade-mark had no power to request plain tiffs 
 to withdraw their trade-mark from the market, the point at issue. 
 
 There have been exceptions to this rule, e. g., a decree given ex parte declaring the plaintiff of sound 
 mind was not regarded as res judicata to found an action for damages against the keepers of an insane asylum 
 who had detained the plaintiff as insane, Mackintosh v. Smith and Lowe (1864, Scot.), 2 M., 389. So a 
 judgment where defendants had not appeared was not regarded as res judicata: Hair v. Town of Meaford 
 (1914), 31 Ont. L. Rep., 124. See also (1910) 74 R. G., 122.
 
 THE DECLARATORY JUDGMENT. 59 
 
 the courts as institutions exist, is disturbed and impaired by the uncer- 
 tainty and insecurity of legal relations as well as by their attack and 
 violation. That it is the duty of the state to afford the community 
 and its members protection against this uncertainty and insecurity 
 is also self-evident. Indeed, many of our States have already recog- 
 nized this fact by furnishing simple methods for the determination 
 of such questions as adverse and doubtful claims of title to property 
 and the construction of wills. The adoption of the declaratory judg- 
 ment, would not, therefore, be an innovation but an extension of a 
 practice which, unconsciously perhaps, has been accepted in isolated 
 instances as a useful aid in judicial machinery. Doubt or hesitation 
 concerning the advisability of fully adopting this important instru- 
 ment of judicial procedure should vanish before the evidence of its 
 undoubted practical value afforded by the experience of England and 
 of a great part of the civilized world. Its simplicity, its capacity to 
 serve important ends of corrective justice without legal hostilities, its 
 utility in deciding many questions which can not now be brought to 
 judicial cognizance, its efficacy in removing uncertainty from legal 
 relations before they have ripened into a cause of action that is, its 
 usefulness as an instrument of preventive justice, a field which has 
 hardly begun to be cultivated in this country, commend the declara- 
 tory judgment to the earnest attention of the American bar and of the 
 public which it serves. We might with profit study Order XXV, rule 
 5, of the rules of the English Supreme Court. While in this country 
 the adoption of such a measure would require legislative enactment 
 rather man the simple English promulgation of a rule of court, the 
 need for the declaratory judgment might be met by our States by the 
 incorporation of an amendment in practice acts or codes of procedure 
 in the sense of the following: 
 
 The [trial] court shall have power in any action or in an independent or interlocutory 
 proceeding, to declare rights and other legal relations on written request for such 
 declaration, whether or not further relief is or could be claimed; and such declaration 
 shall have the force of a final judgment.
 
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