I dissent from the opinion of the court, on the ground that the clause authorizing the confession of judgment in the note in suit was not in conformity with section 5 (2) of the Negotiable Instruments Act of 1901, P.L. 194, and rendered the note non-negotiable.
The note was dated December 19, 1927 and payable "18 months after date," in monthly installments. Instead of "authorizing a confession of judgment if the instrument be not paid at maturity," it authorized a confession of judgment before maturity if any of the monthly installments were not paid, and judgment was confessed on October 16, 1928. The docket entry of *Page 463 the judgment in the record (1-a) contains a note that it was notdue until June 19, 1929.
I believe in a strict construction of the provisions of the act relating to negotiability. A creditor may elect whether he desires the advantages of a negotiable instrument or the security of a judgment note, but he cannot have them both, beyond the measure allowed by the statute. If a negotiable note is a "courier without luggage" it should not be encumbered with a load of freight.
If the note was not negotiable, the Home Credit Co. could not authorize judgment to be confessed upon it in its favor. It could only do so in the name of the payee, to its use, and the judgment would then be subject to defenses against the legal plaintiff existing prior to the assignment.
I would strike off the judgment and remit the plaintiff to its action of assumpsit.