By John McKechnie AO KC
It was February 1864 in the city of Dunedin NZ. The small city was
growing following the discovery of gold in the region. Still, it was far from
the imposing buildings and houses of modern Dunedin.
On Sunday the 6th of February, a great storm arose. Children and women were seen scudding before the wind entirely at its mercy. Buildings were blown to ruins or unroofed. To add to the hardships, at lake Watakip a slight earthquake was felt and hail shredded the tents of the miners. At Bluff Harbour, ships dragged their anchors and fetched up ashore. Even the
national 11 cricket team was delayed!
Bad as the storm was, it was nothing as to what would come next.
At 6pm the next day, a fire broke out in the Daily Telegraph
newspaper offices. Fortunately, they were next to the Provincial Hotel,
which kept hundreds of buckets of water on hand for just such an
emergency.
The water supply throughout the region was notoriously
poor. Before the storm could carry the fire through to the city, it was
extinguished. In the words of a reporter at the time, “Many a blanched
cheek showed the dread that everyone felt”.
But nature was not done with Dunedin. On Tuesday evening about 7pm, the cry of ‘FIRE’ rang out again. The Dunedin fire brigade turned
out, joined by other engines, but lack of water meant that the fire could
not be extinguished. And so it spread.
The fire soon consumed a warehouse and then jumped to the shop of a
gun maker, though quick action had removed the gunpowder before the
fire reached the shop. Remorselessly, the fire spread to other buildings
until it reached Hope St and a bonded warehouse belonging to Mr
Casper. And it is here our tale begins.
Mr William Stewart was the manager of Messr’s T Robinson & Co, a
business making and selling agricultural machines. Opposite Casper’s
warehouse was a vacant block of land owned by T Robinson & Co and
used for storing threshing machines and reaping machines.
With the fire getting ever closer, there was not a moment to lose.
Casper’s warehouse was emptied and some of the goods, including
casks and bottles of alcohol, were hoisted out through the roof and
deposited on the vacant block among the machinery. Mr Stewart was
present. Although he did not give formal permission for the goods to be
put onto the land, he recognised the danger and made no objection.
There was a great crowd about milling in all directions.
About 1am, the fire was still raging, and men came to remove the casks
and bottles to a more secure location. In doing so, they trampled over
some machines. Mr Stewart and a helper, Mr Campbell, set about moving
the machines to give the men more room. As they were doing so, Mr
Campbell drew attention to three bottles hidden by a small piece of wood
behind the wheel of a reaping machine.
What to do? Obviously, the bottles, one of brandy and two of ale, should be handed over to the local collector of Customs, who was present. Mr Campbell was not wearing a coat. Mr Stewart was. So, he said, he put a bottle in each of his outer pockets and the third bottle into an inner pocket, intending to take them to the customs officer. However, that was not to be.
Mr William Mills, the customs officer, observed what had happened. Thinking Mr Stewart was trying to walk off, he called: “What have you got there? You’ve got a bottle!”
Ignoring Mr Stewart’s protestations that he was on the way to hand the bottles over to the authorities, Mr Mills summoned a constable and ordered him to take Mr Stewart into custody for a felony. Mr Stewart spent the rest of the night in a police cell, locked up with a man suspected of murder.
Next day, he faced the magistrate charged with feloniously stealing two
bottle of ale and a bottle of brandy, value 7 pounds and six shillings.
He was acquitted.
Being a highly respectable gentleman whose honour had been
impugned, so he considered, Mr Stewart wrote a stiff letter to Mr Mills
seeking a public apology. Good luck with that! Mr Mills saw no reason to
deign to reply.
Having failed to receive satisfaction, Mr Stewart sued Mr Mills in the
Supreme Court in Dunedin for false imprisonment and malicious
prosecution. He failed before the judge and jury and he failed again on
appeal. It may be that Mr Mills had good reason to suspect Mr Stewart
was stealing the bottles. If so, the imprisonment and prosecution may
have been lawful. We shall never know because the case failed on a
technicality. Mr Stewart was required to give one month’s notice of his
intention to sue. His indignant letter did not count and he had not
otherwise given notice.
The great fire which swept through Dunedin that February 1864 caused
100,000 pounds of damage and destruction. That is more than two
million NZ dollars today. Mr Casper lost his business, the damage being
at least 50,000 pounds. The town council finally were moved to put in a
proper water system, lack of which so hampered the firefighters on the
6th and 7th of February 1874.
Adapted from Stewart v Mills [1864] NZ Macas Rp 13.
Additional information from NZ National Library – Papers Past.
