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, moreover, while admitting that the requests for a declaration and for coercive 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 allon 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 execution on the due day, it is now an executory judgment on which a writ of execution can immediately issue on the due day. 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 executory action has not yet accrued, and to actions for a negative declaration. 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.

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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 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

These actions to safeguard "future" interests will be more fully discussed infra.

I Mattirolo, Trattato de Diritto Giudiziario Civile Italiano (4th ed.) 63. For a short historical account of the negative declaratory action, containing a statement that it was expressly omitted from the Italian code with the exception of the creditor's action ex lege si contendat, see 1 Enciclopedia Giuridica Italiana, pt. V, s. Vo, Azione, 1116-1117.

"Ley 46, tit. II, part. 3a. See 3 Codigos Españoles, 30.

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can codes and a recent decision of the Supreme Court of Spain"1 affirms the modern survival of the old action of jactancia authorized by Law 46 of the Partidas, and denies its implied repeal by art. 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 awaiting the moment of his departure to bring some action against him, he may ask that the latter be compelled to bring his action." (Art. 191.)

Professor 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." He suggests replacing it with a general action for a declaratio juris or declaratory judgment."

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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 declaratory action was adopted in Scotland 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 that "declarators of right proceeded of old by brieve of right which is now out of use." A writer in the Law Magazine" 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

"Bolivia, Code of civil procedure, arts. 189, 191; Chile, arts. 258-262, 278; Argentina (Buenos Aires, Capital), arts. 425-432; Uruguay, arts. 259, 260, 863-872. Similar provisions are to be found in the codes of Panama, Costa Rica, Mexico (Federal District) and of other states of Spanish-America.

"Decision of Sept. 27, 1912, Tribunal Supremo, no. 163 in (1912) 42 JURISPRUDENCIA CIVIL, n. s., 1089.

"Rafael Gallinal, Estudios sobre el Codigo de Procedimiento Civil (Montevideo, 1907) 105 et seq.

"The Spanish nomenclature may easily mislead the casual reader in this matter. The juicio ordinario declarativo is the usual form of action leading to a judgment which may be executed. The juicio ejecutivo is the summary form of action authorized in certain cases of indebtedness on a commercial instrument, 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.

4 Institutions of the Law of Scotland (More's ed. 1832) 4, I. " (1849) 41 Law Magazine, 179.

parliament in 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 suggested 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 declaramus"; and (3) in the forms of the French law, according to which the Court of Session originally administered justice, and which probably contributed, by way of example, to the employment of the declaratory action."

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 [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.""

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80

Among the numerous forms of declarator, which may be either affirmative or negative, disclosed by the Scotch forms are declarations of marriage and of nullity of marriage, of legitimacy, of bastardy,82 of putting to silence, the common form of negative declaratory 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 "non-entry duties";85 of the so-called "expiry of the

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.

7 4 Stair, 3, 47; ibid., 39, 15.

60 See 4 Scots Style Book, s. V, Declarator.

81 Fraser, Husband and Wife (2d ed.) 1238, 1244.

82

The action to declare a child a bastard cannot be brought in English law. Yool v. Ewing [1904] Irish Ch. 434, 445.

This procedure is also well known in Roman-Dutch law as practiced in South Africa. See Morice, English and Roman-Dutch Law (2d ed.) 377; Voet, Bk. XLVII, tit. 10; De Villiers, The Roman and Roman-Dutch Law of Injuries (Cape Town, 1899) 143. 4 Nathan, Common Law of South Africa (Grahamstown, 1907) chap. XVIII. On the Scotch action of putting to silence, see Fraser, op. cit. 1244.

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61 Bell, Commentaries on the Law of Scotland (7th ed. by McLaren) 785. 'Declaration of the landlord's “right” of re-entry for failure to pay rent or other dues. It is a technical action described in 1 Bell, op. cit. 22.

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legal" term of redemption; of the forfeiture of rights;87 of property in or right of succession to moveables; of trust, validity of trust-deed, power to revoke a trust-deed, or that trust instruments are ultra vires;8 of partnership;89 of proving the tenor, and other miscellaneous actions, including those rescissory actions which merely declare a deed or other instrument null and void, without any declaration or judgment against the defendant."1

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 "declaratory adjudication." The first is confined purely to the declaration of jural relations. The law of Scotland, instead of making such declaration optional, makes it in certain cases a condition precedent before an action for coercive relief can follow. So in cases of statutory forfeitures, 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 common 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 “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." The "declaratory adjudication" is a method of vesting a legal title in the

"This 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, ten 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 ten years to expire during which he had a legal power of redemption. The 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.

Mackay, Manual, op. cit. 79, 378. The declaration of the forfeiture of a lease is known as a declaration of "irritancy." See case of Wylie v. Heritable Securities Invest. Assn. (1871) 10 M. 253.

2 Bell, op. cit. 386, note 3.

"2 Bell, op. cit. 562, and cases there cited.

That is, proving the tenor of lost or destroyed instruments by which a jural relation is required to be established. See Lord Lovat v. Fraser (1845) 8 D. 316; Erskine, op. cit. 542-544.

"Bell, Dictionary and Digest of the Law of Scotland (7th ed. by Watson) 291; Erskine, op. cit. 542.

*Mackay, op. cit. 78, 79, 374-379.

*Bell, Principles, sec. 1995; Mackay, Manual, 378.

person who has the beneficial interest." 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 declaratory 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 jural relation 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 Scotland are called declaratory reveals that many of them fall within the class of what we would call investitive, and the conclusion cannot 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," 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 relation he asserts must be disputed; 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 cannot constitute res judicata. 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 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

.99

“Dalziell v. Dalziell (1756) 16 M. 204; 1 Bell, Commentaries, 751.

"See Magistrates of Edinburgh v. Warrender (1863) 1 M. 887, by Lord Neaves.

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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.

98

Chaplin's Trustees v. Hoile (1890) 28 Sc. L. Rep. 51; Falconer Stewart v. Wilkies (1892) 29 Sc. L. Rep. 534.

99

Todd v. Higginbotham (1854) 16 D. 794.

100 Leith Police Commissioners v. Campbell (1866) 5 M. 247.