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

Moss v Johnstone (1830) NSW Sel Cas (Dowling) 373; [1830] NSWSupC 24

lunacy, liability for necessaries

Supreme Court of New South Wales

Dowling J., 31 March 1830

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462[1 ]

[p. 293]

[After a widow lady had had a commission of Lunacy found against her,[2 ] the Defendant knowing the fact received her into his house and took her promissory note and supplied her with necessaries she having a residence of her own to go to.  Held that an action could not be maintained against the lunatic upon the note or on the common Counts for necessaries.]

Wednesday 31st March 1830

W Brown Esqr

AB Sparke Esqr

Moss v Johnstone

Coram Dowling J.

Assumsit on a promissory note for the amount of £71.10.4 1/2 Common Courts


Wm Fleming  This is my writing, as a witness to this note, I know the Defendant I saw her make her mark, it was at her own house in Hunter in April 1829.  She rented that house of Mr Moss 14 April 1829.  I was going my the window and she tapped and called me in.  I had known her for 20 yrs, and during the time she was at Mr Moss, I was very intimate with her.  She told me the Plaintiff was pressing her for the amount of a bill and begged me to go and speak to him at the adjoining house where he lived, I went I told him what [p. 294] she had said.  He said he had sent her in a bill there was a copy of Execution and he did not want to distress Mrs Johnstone, I then brought in the bill to her.  She looked over it with very great affection I dare say she is between 50 or 60.  She said there were two or three objectionable items in the bill, I said they might have inadvertently crept in but I was sure the Plaintiff would not impose on her She mentioned some of the articles by name seeming conversant with the contents.  I then took the bill back to Moss, and he took off the objected articles to the amount of £1.5.  There was a Mattress or pillow she objected to it.  When it was expld to Moss that was deducted off the bill.  She then made her Mark to the note, which was drawn after the account was settled and made no objection.  All the account was settled before she signed the note, she seemed to be as collected as Mr Foster.  She seemed gratified at Moss Indulgence and she said that Mr Moss acted more like a son to her than a creditor.  Mr Moss is a publican.  I considered her perfectly competent.[3 ]



[1 ] See also Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 33, Archives Office of New South Wales, 2/3216, p. 154.

[2 ] See In re Johnstone, 1829.

[3 ] This continued: "to transact her affairs."  (Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 33, Archives Office of New South Wales, 2/3216, p. 154.)  The latter version of the notebooks continues the evidence, but is illegible in places.

Published by the Division of Law, Macquarie University