Camp against Walker, 5 Watts 482

The opinion of the Court was delivered by Rogers J. This was a suit brought before a justice of the peace, by the holder of a negotiable note, to recover from the defendant a sum less than 100 dollars, and the main question is, whether the justice had jurisdiction. If the suit had been brought by the payee, the consideration could have been inquired into; and if it had appeared that the note had been given as the price of real estate, the justice would not have had jurisdiction.

The act of 1810 preserves the exclusive jurisdiction of the court of common pleas in actions where the title to lands and tenements' may come in question, and in Sechrist v. Connell, 3 Penns. Rep. 389, it was decided that may was not intended to mean shall; but I know no case where it was ruled, as is supposed in the charge, that a justice has not jurisdiction, merely because the consideration of a bond or note was real estate. The test of jurisdiction is whether the title to land may come in question.

But it is not perceived how the title to the land, which was the consideration of the note, can come in question. The holder of a negotiable note has nothing to do with the original consideration; he takes it discharged of all equities between the maker and payee. It was not material whether Walker had notice of the transfer of the note at the time of his settlement or not. The note was negotiable, and was passed away before the settlement between the maker and payee, in the regular course of business.

If the maker of the note thinks proper to pay the payee, without the production of the note, he does so at his own peril. ' The holder, who has the legal title, can recover from him, notwithstanding such payment. This case, however, is clear of all difficulty, as it appears that Walker had notice of the transfer at the time of the settlement. It is scarcely necessary, after the repeated decisions which have been made, to add, that the declarations of Knapp, after he had parted with his interest, were improperly received in evidence.

In the argument, it was properly conceded that the court was in error as to this part of the record. Judgment reversed, and a venire.de novo awarded.