The Queen against Payn
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 1840 |
| Date | 13 May 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 677
IN THE COURT OF QUEEN'S BENCH.
11AD.4E.BM. THE QUEEN V. PAYN 677 [955] the queen against payn. Wednesday, May 13th, 1840. Prosecutors of a mandamus moved to take return off the file, on affidavit, and on objections made against the validity of the return itself. The Court, after argument on the law and facts, ordered, in general terms, that the rule should be discharged. Defendant then traversed the return. Oti motion to take the traverse off the file, because judgment had already been given in favour of the validity of the return, Held, that discharging a rule under the above circumstances was not equivalent to a judgment on concilium, and that the prosecutors were entitled to traverse: the Court saying that they did not intend, on the motion, to decide upon the validity of the return in point of law. The Court having, in this case, refused to quash the return to a mandamus on motion (Rex v. Payn, 6 A. & E. 402-7), the prosecutors traversed the return. Thesiger, in last Hilary term, obtained a rule to shew cause why the traverse should not be taken off the file, on the ground that the legality of the return had already been questioned on the former argument. Sir J. Campbell, Attorney General, Sir W. W. Follett, and F. Robinson, now shewed cause. The Court in Bex v. Payn (6 A. & E. 392, 402), decided only that they would not, under the circumstances, make a rule absolute for summarily taking the return off the file. When a return is good, and nothing takes the case out of the ordinary course, the general rule has been that, if the validity of the return has been affirmed on argument, the facts alleged in it cannot be traversed ; but that is after solemn decision on concilium. And, according to the opinion expressed by the Court to-day in Begina v. The North Midland Railway Company (b), even such a decision [956] will not prevent a traverse, on points independent of the question of law. Here, therefore, the prosecutors are in the same situation as if the former motion had not been made. The judgments delivered by this Court in Rex v. The Mayor and Aldermen of London (3 B. & Ad. 255, 279), shew what was then considered the practice as to disputed returns. [Lord Denman C.J. We only said, in Rex v. Payn (6 A. & E. 392, 402), that, whether the return were good or bad, we would not determine the point on that application. I had no idea of deciding then that the return was a good one. The defendant...
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