has the advantage over the seller. If under such circumstances the buyer sees fit to waive the provisions of the statute, whether with or without consideration, he should be allowed to do so.

SECTION 25. (Additional Rights of Buyer.) The buyer under a conditional sale shall have the right when not in default to retain possession of the goods, and he shall also have the right to acquire the property in the goods on the performance of the conditions of the contract. The seller shall be liable to the buyer for the breach of all promises and warranties, express or implied, made in the conditional sale contract, whether the property in the goods has passed to the buyer at the time of such breach or not.

This section is inserted merely for the sake of completeness. The remedies which are common to all buyers of goods, whether the contract be conditional or unconditional, are left to the Uniform Sales Act or to the prevailing common law. The courts have found some difficulty in fixing the rights of the parties where a warranty has been made in a conditional sale contract. Rogers & Thornton v. Otto Gas Engine Works, 7 Ga. App. 587; W. W. Kimbal Co. v. Massey, 126 Minn. 461; Peuser v. Marsh, 167 App. Div. (N. Y.) 604; Cooper v. Payne, 186 N. Y. 334; Blair v. A. Johnson & Sons, 111 Tenn. III. If the seller's promise with respect to the goods has been broken, it is submitted that the buyer ought to be allowed to recover damages suffered by that breach, whether the buyer has become the owner of the goods or not.

SECTION 26. (Loss and Increase.) After the delivery of the goods to the buyer and prior to the retaking of them by the seller, the risk of injury and loss shall rest upon the buyer. The increase of goods sold under a conditional sale shall be subject to the same conditions as the original goods.

The rule with respect to risk of loss is that adopted by the Uniform Sales Act and by a great majority of the states. Uniform Sales Act, Sec. 22; Blue v. American Soda Fountain Co., 43 So. (Ala.) 709; Hollenberg Music Co. v. Barron, 140 S. W. (Ark.) 582; O'Neil-Adams Co. v. Eklund, 89 Conn. 232; Phenix Ins. Co. v. Hilliard, 52 So. (Fla.) 799; Jessup v. Fairbanks, Morse & Co., 78 N. E. (Ind.) 1050; Burnley v. Tufts, 66 Miss. 48; Tufts v. Wynne, 45 Mo. App. 42; Charles A. Stickney Co. v. Nicholas, 152 N. W. (Neb.) 554; Collerd v. Tully, 78 N. J. Eq. 557; Nat. Cash Reg. Co. v. South Bay Club House Ass'n, 64 Misc. (N. Y.) 125; Whitlock v. Auburn Lumber Co.,

145 N. C. 120; Harley v. Stanley, 105 Pac. (Okla.) 188; Carolina, etc. Co. v. Unaka Springs Lumber Co., 130 Tenn. 354; Lavalleyv. Ravenna, 78 Vt. 152; Exposition Arcade Corp. v. Lit Bros., 75 S. E. (Va.) 117. It seems desirable to insert this section in the Uniform Conditional Sales Act, although there may be a duplication of legislation in states where the Uniform Sales Act is already in force. The Uniform Sales Act does not expressly refer to conditional sales, but only to sales where the title is reserved as security for the payment of the price. Furthermore, states which have not adopted the Uniform Sales Act may adopt the Uniform Conditional Sales Act.

It is well established that the increase of goods sold under a conditional sale remain the property of the seller until the performance of the condition and then pass to the buyer with the original goods. Anderson v. Leverette, 116 Ga. 732; Allen v. Delano, 55 Me. 113; Desany v. Thorp, 70 Vt. 31.

SECTION 27. (Act Prospective Only.) This act shall not apply to conditional sales made prior to the time when it takes effect.

SECTION 28. (Rules for Cases not Provided for.) In any case not provided for in this act, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall continue to apply to conditional sales.

This section is modeled after sec. 73 of the Uniform Sales Act and is inserted for the sake of completeness and clarity.

SECTION 29. (Uniformity of Interpretation.) This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

SECTION 30. (Title of Act.) This act may be cited as the Uniform Conditional Sales Act.

SECTION 31. (Inconsistent Laws Repealed.) (Here repeal all existing acts in the field of conditional sales.) But the laws repealed by this section shall apply to all conditional sales made prior to the time when this act takes effect.

SECTION 32. This act shall take effect.

BY WILLIAM HAZLITT SMITH1

From the very nature, purpose and duty of courts, rules of practice and procedure are necessary. If each judge made his own rules for the courts he held, varied practices and requirements would arise to confuse and confound both litigants and lawyers. Therefore the judges, if left to themselves, would soon get together and make uniform rules to govern and regulate the business in their courts in all matters of practice and procedure. Accordingly the judges, unless prevented by statute, have authority to make rules. The legislature is, of course, the other authority, and the controlling authority, except as limited by the constitution, or except as it may expressly give such authority to the judges and courts. A code of procedure is essentially made up largely of rules, though in form and origin wholly a statute of a legislative body.

There is now in this country an active agitation against Codes of Procedure, and in the State of New York it is seriously proposed to abolish both the name and substance, and scatter the contents into various separate statutes, new and old, and into so-called Court Rules, statutory to begin with and afterwards subject to revision and amendment by the judges.

Rule-making authority, almost unlimited, is granted to the judges in England, and it may be well to examine the extent and manner of its exercise there. A book entitled "The Rule-making Authority in the English Supreme Court" by Samuel Rosenbaum, recently Fellow in the Law School of the University of Pennsylvania, has been published this year. This volume gives a careful and complete history of rule-making and reform in procedure in England, and I obtain from it and from the White Book, Annual Practice for 1916, the facts here stated.

Reform began in 1833 with an Act authorizing eight of the Common Law judges to make rules for the reform of pleading. This Act was broadened in 1850, 1852 and 1854. In 1850 and 1858 acts were passed authorizing the Chancery judges to make general rules covering practically the whole procedure of the court. Rules were also authorized and made under several Acts relating to Bills of Exchange, Dispatch of Business, Debtors, etc. Before 1875 the Common Law Courts were by statute given jurisdiction of some equitable rights and remedies, the Court of Chancery was given some legal powers, and the way was paved for abolishing the distinction between these courts

1Of the Ithaca, N. Y., Bar; A.B., Cornell, 1873. "Published by the Boston Book Co.

as to jurisdiction and powers. This was accomplished by the Judicature Act in 1875, which made the Common Law and Chancery Courts divisions of the Supreme Court, with the forms of action alike in each. This Act of 1875 has since been amended and extended in various particulars, and numerous other Acts, a dozen or more, have been passed relating to special rights, remedies and subjects. All these Acts taken together make a statutory Code, quite complete, and cover a wide range, quite analogous to portions of the New York Code of Civil Procedure if it were divided into separate statutes.

The Act of 1875 expressly gave authority to the Judges to make rules. In 1876 a Rules Committee of six judges was constituted, the number being increased to eight in 1881. Later, in 1894, the President of the Incorporated Law Society (London solicitors) was added by statute, and the Chancellor was empowered to add two more to the Committee, one of them to be a practising barrister. In 1909 an Act was passed providing that the General Council of the Bar (barristers) should choose two to sit in the Committee, the Incorporated Law Society should choose one, and that the Chancellor should appoint one solicitor from a provincial Law Society. This Act is still in force. The Rules Committee is now composed of eight judges, two barristers and two solicitors. This Committee has express power to make and amend all rules regulating the sittings of the courts and of the judges thereof, the pleadings, practice and procedure of the courts, the duties of their officers, and the costs of proceedings therein. The Act of 1875, and all subsequent amendatory Acts, expressly reserve to Parliament the right to annul any rule within forty days after it is made, but without prejudice to proceedings already had thereunder. Proposed rules and amendatory rules have to be published in the London Gazette during the forty days, and copies of the proposed rules have to be accessible to any public body.

The Rules Committees have made numerous revisions, amendments and additions so that the Rules of the Supreme Court have grown from 456 (in 1875) to 1045 (as appears by White's Annual Practice, 1916).

It is not within the scope of this article to examine or comment on the contents or substance of the Rules above referred to. It is sufficient to say that the reforms accomplished in England by the Acts referred to, and by the Rules, are revolutionary compared with the old regime, and are considerably in advance of the present Code practice and procedure in our numerous states, and especially in the State of New York. In 1887 Lord Bowen, writing of the English reforms, said:

"A complete body of rules, which possesses the great merit of elasticity, and which (subject to the veto of Parliament) is altered from time to time by the judges to meet defects as they appear, governs the procedure of the Supreme Court and all its branches. every cause, whatever its character, every possible relief can be given with or without pleadings, with or without a formal trial, with or without discovery of documents and interrogatories, as the nature of the case prescribes, upon oral evidence or affidavits, as is most convenient. Every amendment can be made at all times and all stages in any record, pleading or proceeding, that is requisite for the purpose of deciding the real matter in controversy. It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation. The expenses of the law are still too heavy, and have not diminished pari passu with other abuses. But law has ceased to be a scientific game that may be won or lost by playing some particular move."

It should be stated that the Rules do not apply to the County Courts. The County Courts Act, 1888, provides for those Courts making their own rules, with the concurrence of the Rules Committee of the Supreme Court. Such rules have been made and now number over 1200. A separate annual County Courts Practice is published.

It remains to consider the rule-making authority of legislatures as exercised to date, through Codes of Procedure, especially in the State of New York. In legislation the tendency has been to be too specific with reference to the details of practice and procedure, and so the New York Code has grown in number of sections and has become too precise and allows practically no variation according to the circum

Practice under it is not elastic and is often discouraging to a party seeking relief. The legislature has been buncoed by interested parties into passing amendments and additions to serve some special purpose or to fit some special circumstance. More than one section of the Code furnishes ground for belief in the truth of this charge. These evils are not to be charged against the Code as a fundamental proposition. Lack of careful supervision of Code legislation in advance of passage is largely to blame. People ignorantly like to be told just what to do and what not to do, and the legislature accommodates them. Witness the agitation for years to amend the AntiTrust Law, a model because of its brevity and the use of general terms.

But whatever be the rule-making authority, whether legislature or judges, or both, with the assistance of lawyers, the tendency will be toward the evils mentioned. The rules will be frequently amended, revised and added to by one authority or the other. The English