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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Johnstone [1829] NSWSupC 15

lunacy - insanity

Supreme Court of New South Wales

Trial, 17 March 1829

Source: Australian, 20 March 1829



An Inquisition took place on Tuesday in the Court House, King-street, in pursuance of a Writ de lunatico inquirendum, in the case of Mrs. Johnstone, of Annandale.[1 ]  The enquiry was commenced on Thursday 11th inst. at the residence of this unfortunate lady, where a number of witnesses were examined to prove the fact of her lunacy.  At a late hour in the day Mr. Poole on the part of Mrs. J. appeared before the Inquisition.  He contended the proceedings were unconstitutional, and should be conducted in open Court.  The Commissioners directed an adjournment to Tuesday last, when the enquiry was conducted in open Court.

The Commissioners were John Stephen, G. Bunn, and A. B. Sparke, Esqrs.

The Jury consisted of Messrs. Dickson, Terry, Terry Hughes, Wiltshire; Blaxland, Maziere, Wood, Chisholme, D. Cooper, Jos. Underwood, G. Paul, Pritchett, R. Cooper, and Hosking.

Mr. Wentworth applied on behalf of the appellants in this case, and Mr. Poole, having the assistance of Mr. S. Stephen, on the part of Mrs. Johnstone, Mr. Poole requested that the depositions taken at the first meeting might be now read, as he (Mr. P.) was anxious to cross-examine the witnesses.

The Court ruled, that this being an ex parte proceeding, such a course was inconsonant with the usual practice.

Dr. Bland cross-examined by Mr. S. Stephen -- Has known Mrs. J. upwards of twelve years, a great part of that time intimately so; she is a woman of rather eccentric habits, hasty in her temper, and has an abrupt mode of expressing herself; does not ascribe this to want of education, but allows that she is an illiterate woman; does not consider such mode of expression to be the effect of insanity, but that such habits would be very likely to merge into insanity; admits the justice of the adage that passion is a temporary madness.

Mr. Stephen proceeded to address the Court.  The female in question, he observed, who was now present in Court, had by her exertion and judgment during many years past, succeeded in accumulating an extensive property; this was certainly no proof of insanity, but a wish to wrest that property from her appeared now to be the motive which influenced the parties instituting the present enquiry.

The Learned Counsel, in a speech replete with humour, contended that the eccentric habits of this lady, even admitting them to have been heightened by the occasional practice of drinking too freely, presented no grounds for pronouncing her insane, and depriving her of the property she had by her industry acquired.  If all persons in the habit of drinking and committing extravagances in consequence, were to be supposed mad, he, the learned gentleman, believed it would be difficult to find Jurymen enough to decide upon their cases.

Dr. Bland -- Cross-examination resumed.  Has known Mrs. J. to be in a state of excitement for weeks together; such excitement might be caused by drinking; cannot say whether on a person labouring under mental anxiety, occasioned by supposed oppression, or ill treatment would have a similar effect; has seen Mrs. J. driving most furiously through the streets, and deems such behaviour to be an act of madness; a woman doing such acts as these might, nevertheless, be very capable of managing her house and farming concerns; witness upon the whole is of opinion that Mrs. J. is not sane; he considers her to be in such a state that she ought to be under personal restraint; admits that she is at times lucid, and perfectly composed; distinguishes between excitement caused by drinking, and that which is the effect of insanity; is decidedly of opinion her extravagant behaviour, which he has frequently witnessed, proceeds from mental imbecility.

By the Commissioners -- Cannot say whether her insanity is the effect of drinking, or whether a habit of drinking has been induced by insanity.

By Mr. Stephen -- Mrs. J. is in a state of alternate imbecility and fever.

By the Foreman -- Does not think that she is in her present condition fit to be intrusted with the management of her affairs.

Mr. Stephen being then about to cross-examine the other witnesses (about ten in number) who had given evidence on the former day, the Commissioners were of opinion, that such a course would occupy considerable time to no purpose, all those witnesses having agreed in imputing acts of insanity to the party.  Mr. S. said, he had been led to expect the right of cross-examining them.  He (Mr. S.) had about forty witnesses to call on his side, and suggested, as they were not in attendance, that an adjournment should take place.

Mrs. Johnstone now, in consequence of a hint given by the Jury, rose and declared her willingness to give any explanation required, and the Foreman having asked her what was the cause of the extraordinary conduct imputed to her? she proceeded to accuse her relatives of a series of what the unfortunate lady termed violent and oppressive acts, and declared her determination to bear it no longer, but to quit the Colony altogether.

Jacob Isaacs -- Examined by Mr. Stephen.  Lives near Annandale; Mrs. J. has often during the last five years come to his house, and craved protection; has shewn witness various bruises and kicks, on her person; described some other acts of violent treatment which he had witnessed; she accumulated her property by hard struggling; it was not the red jacket got the money has seen her within the four last years, and even months, personally superintending the concerns of the family, knows that she does take a glass, so do we all the higher classes as well as the lower; it is natural, we cannot do without it, otherwise the publicans could not live.  [This witness kept the Court in long continued laughter, by his very precise but comical manner of delivering himself.]

By the Jury -- Considers her a woman fully capable of minding her own affairs, or of managing those of any other person.

By Mr. Stephen -- Mrs. Johnstone has been in the habit of taking spirituous liquors at his house in moderation, as a friendly visitor.

George Elsom examined by Mr. Poole -- Is the assigned servant of Mr. R. Johnstone; is principally employed in the house at Annandale; never saw any instance of ill treatment on the part of his master towards Mrs. Johnstone.

Charles Druitt -- Was servant to the late Colonel Johnstone; continues to serve in the family; does not know whether he is the servant of Mrs. Johnstone, or Mr. R. Johnstone; has heard Mrs. Johnstone frequently complain of ill-treatment by her son Mr. R. Johnstone; believes those complaints were unfounded and false.

Charles Nicholls -- Is the grandson of Mrs. Johnstone; lived in her family for some years off and on; quitted it in October last; she was always a stirring industrious woman; of late she has become altered; has only met her occasionally in the streets; she has frequently complained to witness of things occurring at Annandale, and raving against her son Robert; has every reason to doubt the truth of those sayings; she has frequently abused witness and his brother; witness on those occasions used to run away from her; is not aware of her being accustomed to abuse strangers, only her own family.

Mr. Poole spoke at some length on the expediency of the Court and Jury exercising patience before putting a hasty termination to this enquiry, involving as it did such important results to all parties, particularly to his client, and concluded by praying the Court for an adjournment.

Mr. Wentworth addressed the Court and Jury on the proofs which had been adduced of the lady's actual insanity, and pressed a decision of the question.

Mr. J. Stephen having recapitulated the evidence taken on the former day, the Jury retired at a quarter to five o'clock, and after a lapse of one hour, during which much anxiety pervaded the auditors, returned into Court, finding that Mrs. Esther Johnstone is not of sound mind, nor capable of managing her affairs.

Mrs. J. sat at the table during the whole progress of this inquiry, sometimes interrupting the witnesses with a little impatience, but in a very quaint and pertinent manner.



[1 ] This was also reported by the Sydney Gazette on 19 March 1829.  See also Moss v. Johnstone, 1830; and on lunacy, see Sydney Gazette, 15 December 1829 (incapacity brought on by alcohol).

Mrs Johnstone was the widow of Colonel Johnstone, who was unlawful acting governor of New South Wales after the coup against Governor Bligh in 1808.

Published by the Division of Law, Macquarie University