Browne v. Rowe (10 Tex. 183, 1853)

Hejmphilu, Ch. J.

Various grounds have been assigned for error, but, as there is no objection to the amount of the judgment, the only question which I shall examine is whether, on the facts stated, there was any legal ground for the grant of the writ of prohibition.

This writ issues from a superior court, and is directed to tlie judge and parties in any suit in an inferior tribunal, commanding them to cease from tlie prosecution thereof, upon a suggestion that either tlie cause originally or some collateral matter arising therein does uot belong to that jurisdiction, but to the cognizance of some other court. (Black., vol.'S, pp; 112, 113.) This, in substance, is tlie definition of the writ. Its purpose is to restrain tlie encroachment of the jurisdiction of inferior courts, and it is extended to a great variety of cases, having a more or less intimate relation with its general object.

Is there anything in tlie facts of this case which would bring the proceeding of the defendant before tlie magistrate within the scope of tlie writ? There has been no pretense that the defendant’s claim was not within tlie jurisdiction of tlie justice of the peace. It does not even appear, by any evidence in the canse, that the plaintiff was tlie owner of the notes against, the defendant at the time the latter brought his suit before the magistrate. Tlie plaintiff does not positively allege such to bo the fact, though his and the defendant’s allegations, 'when considered together, are contradictory in that particular; but the iacfc, either way, is not established by proof. The presumptions, to say the least, are as much against’as in favor of the plaintiff. I have alluded to this fact, as it appears to have been much controverted; but the truth either way is not very important, when considered exclusively with reference to its operation in favor of or against the grant of the writ.

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