And the Band Played On (24 page)

19

Establishing Paternity

2 December, Dumfries Sheriff’s Court

It really was extraordinarily bad luck for Andrew Hume that Mary Costin’s mother worked for a firm of solicitors. Hume had wrongly assumed the Costins to be a dull-witted, down-at-heel family, lacking in initiative and resources. Mary Costin was an inconvenience and an annoyance but it never occurred to Andrew that she could be a threat to a man in his position. He knew vaguely that Mary worked in a mill where gloves were made – since Jock’s death he had turned her occupation into yet another form of insult – but he had never bothered to ask what her mother did, as it was of no interest to him whatsoever.

Had Susan Costin worked for a firm of grain merchants it might all have ended differently. But Messrs Walker & Sharpe had a reputation for looking after their people and that included their caretaker and cleaner, Susan Costin. When Mr Hendrie, who had helped Mary with her application to the
Titanic
Relief Fund, discussed the case with the other partners, they were outraged on her behalf and agreed that the firm should act for Mary on a pro bono basis.

The priority was to make a successful application for paternity, without which the Relief Fund would not consider an award. The legal arguments would centre on the young couple’s intentions, the nature of the relationship and Mary’s character.

Mr Hendrie wasted no time taking witness statements and collecting relevant evidence, including letters written by Jock. The postcard of the
Titanic
that he sent from Southampton formed part of this evidence. The minister at Greyfriars Kirk confirmed that Jock and Mary worshipped there and had consulted him about their forthcoming marriage plans. Jock’s sister Nellie made a statement, although she did not tell her father that she had done this. Mary’s employer at the mill provided a character reference. Mr Walker himself swore an affidavit saying he had known the family for more than ten years, vouching for their decency and honesty.

Mary spent hours going through Jock’s letters trying to find pages that would support her case without causing embarrassment. But the evidence that would count most, Mr Hendrie impressed on Mary, would be her own and her mother’s statements and their performance in the witness box. He warned her that if Andrew Hume decided to oppose the application, in his capacity as Jock’s executor, she would be expected to answer some offensive and challenging questions from the Humes’ lawyer.

Speed was of the essence because of Mary’s pressing need to provide evidence of paternity to the
Titanic
Relief Fund. Mr Hendrie was given an assurance by the clerk of the court that time would be made for a hearing within three weeks of the application being lodged. Herein lay a dilemma. Mr Hendrie had discouraged Mary from registering Johnann’s birth before the court case because, in cases where the father was dead and the mother unmarried, the registrar was required by law to leave the name of the father blank. Hendrie was hoping to spare Johnann the lifelong stigma of illegitimacy by registering the birth after legally establishing paternity. But he had failed to understand the correct procedure. Mary’s application for paternity had to be accompanied by a birth certificate.

There was no way round the law. On 7 November 1912 Mary registered Johnann’s birth, no name being entered on the register for the name of the father. Later that day, Mr Hendrie filed an application at Dumfries Sheriff Court on behalf of Mary to establish paternity. At the same time, he served notice on Andrew Hume as Jock’s executor. The following day Andrew Hume informed the court of his intention to oppose it.

The application for a decree of paternity was heard on 2 December 1912. Neither Andrew Hume nor his representatives appeared to contest the application. Unfortunately the pre-trial statements and the Sheriff’s case notes were discarded when the files were transferred from Dumfries to the National Archives of Scotland in Edinburgh fifty years ago, so no record of the hearing exists. But the decision of the court was recorded in the National Archives and the birth register held at the General Register Office for Scotland was amended accordingly. It says:

In an action relating to the paternity of a female child named Johnann Law Hume Costin born at 35 Buccleuch Street, Dumfries on October 18th 1912, at the instance of Mary Catherine Costin residing at No. 35 Buccleuch Street Dumfries against Andrew Hume, music teacher, Dumfries and others as representatives of the said deceased John Law Hume, the Sheriff Substitute of Dumfries and Galloway upon 2nd December 1912 found that the said child was the illegitimate child of the said Mary Catherine Costin and John Law Hume.

20

The Costins and Humes in Court

11 December, Dumfries

The decree of paternity, confirming that Jock Hume was indeed the father of her child, opened the way for Mary Costin to reapply for assistance from the
Titanic
Relief Fund, which she immediately did. That ought to have been the end of the matter.

Instead, it marked the beginning of a year-long bitter war of attrition between Mary Costin and Andrew Hume. The field of battle was Dumfries Sheriff Court, directly opposite the Costins’ home in Buccleuch Street. And although Mary Costin fired the first shot, it was Andrew Hume who provoked the hostilities by stealing money that had quite clearly been intended for Mary’s child, his own granddaughter.

‘The
Titanic
Fund Case’, as the
Standard
called it, was an extraordinary legal battle. At the end of it all, reputations were ruined and lives broken. This bare-knuckle fight between my grandmother Mary, the unmarried mother, and Hume, the father of the dead bandsman hero became the talking point of Dumfries, every round of it reported in full on the pages of
Standard
.

By Christmas 1912 Mary was feeling relieved, believing she had put the whole paternity issue behind her. The court order establishing paternity had been forwarded to the
Titanic
Relief Fund by Mr Hendrie and Mary had signed a new application for ‘relief’. The matter was now in the hands of the Honorary Secretary of the Liverpool
Titanic
Fund, Mr Percy Fullerton Corkhill, who was responsible for dealing with all applications for grants from Scotland, and from England north of Birmingham.

Mr Corkhill, who was also assistant solicitor to the Corporation of Liverpool as well as private secretary to the Lord Mayor of Liverpool, wrote to Mr Hendrie by return informing him that Mary’s claim was ‘receiving attention’. Indeed, it received instant attention, as did most things coming across the desk of Mr Corkhill, one of life’s natural administrators. The Claims and General Purposes Sub-committee met next day, by which time ‘Johnann’ had already been allocated a beneficiary number C689 (the ‘C’ indicating ‘crew’). The committee granted a benefit payment of 2s 6d a week (approximately £6 in today’s terms) plus an immediate distribution of £67 out of funds for ‘aliment’ – essentially food, fuel and sustenance, equating to the quite substantial sum of £3,100 in today’s terms. The necessary approvals were completed between Christmas and New Year.

So far so good. But unfortunately, the cheque for £67, instead of being sent to Mary, was sent to Andrew Hume by mistake. Hume promptly cashed the cheque at the National Bank of Scotland in Dumfries and pocketed the money, ignoring the accompanying letter from Mr Corkhill, which made it clear that it was a distribution for Mary Costin ‘and her child’. Hume then had the audacity to write to Mr Corkhill, on 3 January 1913, acknowledging receipt of the cheque. Corkhill took the acknowledgement to mean that the money had been passed on to Mary for the child. But it had not. It was around this time that Andrew Hume wrote to Commissioner Gilchrist in New York pressing his fraudulent claim for the two violins.

By April, not having heard anything more from the
Titanic
Relief Fund, Mr Hendrie ‘caused inquiries to be made’ and discovered the administrative error. He wrote to Andrew Hume on 25 April asking him to forward the £67 to Mary Costin, the intended recipient. Hume denied receiving the money. Mr Corkhill also wrote to Hume, who again denied receiving the money despite having acknowledged receipt of the cheque. On 18 June Mr Corkhill wrote again to Hume saying, ‘Please understand that the money was intended for the benefit of Miss Costin’s child and not in any sense for your own benefit.’

Andrew Hume claimed never to have received this letter so Mr Corkhill wrote a fourth letter, sent by registered post on 23 July, asking for the £67 to be returned. The
Titanic
Relief Fund, he reminded Hume, had been ‘raised by public subscription . . . for the aid and relief of the widows, orphans and dependent relatives of the persons who lost their lives by reason of the foundering in the Atlantic Ocean of the steamship
Titanic
’. The committee ‘could not, and did not, regard Andrew Hume in any way dependent on the deceased.’ Indeed, when the fund had been formally established in July the committee had minuted their decision that ‘while each case would be dealt with on its merits and in a generous way,
the fund was not a medium for granting permanent compensation for the loss of future benefits from relatives
’.

Mr Corkhill’s letter failed again to get a response, so Mary Costin issued a writ. The case was heard by Sheriff Campion in Dumfries on Friday 8 August, when the brief facts of the case were put forward. Andrew Hume’s defence was that he had indeed received the £67 but he had assumed it was intended for himself as he had been in contact with the fund on his own behalf. He then revealed that he had received individual sums of £25, £71 9s. 7d and £140 from the Mansion House and
Daily Telegraph
Funds and a donation for an unspecified amount from the Boston Musicians’
Titanic
Fund earlier in the year, before the child had been born. Mary Costin had not been aware of any of these handouts. The case was adjourned for a month so that the defence had time to prepare their case and so that Mr Corkhill could travel from Liverpool to give evidence.

When the court reconvened, Mr Hendrie informed Sheriff Campion that he had asked his senior partner Mr Bannerman to take over from him as Miss Costin’s representative ‘because I felt I was an important witness and therefore would not be able to do justice to Miss Costin as her agent’. In his evidence, he led the court through the trail of lies, contradictions and double somersaults that he had encountered in his dealings with Andrew Hume. Mr Bannerman called as witness Mr James Henderson, who said he had previously acted for Mr Hume as agent, or solicitor. Mr Hume, he said, had written to the administrators of the
Daily Telegraph Titanic
Fund alleging that he had conclusive proof that his son was not the father of Miss Costin’s child. When he – Henderson – had asked what the evidence was, Hume had not been able to provide any. He no longer represented Hume.

Mr Corkhill said that Hume had written to him a month after the birth saying, ‘I consider that I, as his [Jock’s] parent and legal representative ought to have an opportunity of rectifying the alleged evil.’ Corkhill confirmed he had made it clear to Hume on several occasions that any grant from the fund would be for the benefit of the child.

At this point Andrew Hume’s solicitor, Mr I. Edgar, intervened saying he wished to withdraw from the case. It was only fair that he should do so. He was ‘in his Lordship’s hands’ but begged leave to withdraw. He had taken the case because ‘in the notes and papers handed to him there seemed ample justification for a defence’. He had told his client that if it were the case that the sum had been specifically set aside for Miss Costin he could not continue to represent him. The Sheriff said he quite understood Mr Edgar’s position, indeed it was one he would expect him to take up. After consulting with his client, Mr Edgar said Andrew Hume conceded defeat in the case.

‘A Sensational Ending’, said the
Dumfries & Galloway Standard
. ‘Defender’s Agent Withdraws from
Titanic
Fund Case’. But if Mary Costin thought that victory was hers, she had a nasty surprise, when Sheriff Campion issued his ‘interlocutor’ – in Scottish law, his decision, or order, of the court: ‘The difficulty I have had all along in the case is whether the pursuer (Mary Costin) is one who has a title to sue this action.’ The Sheriff’s eccentric legal argument continued as follows: the £67 sent in error to Andrew Hume was a discretionary donation from the
Titanic
Relief Fund. Mary Costin could not have sued the fund for a grant because any distributions were gratuitous – therefore she had no entitlement to sue someone to whom it had been sent in error. This would appear to be a case, he concluded, of
condictio indebiti
– reclaiming wrongful payment – and Mary Costin was therefore not entitled to the money.

Mary appealed. The law lords in Edinburgh considered the case on 3 December 1913 and were unanimous in their verdict. Lord Justice Clerk said: ‘I cannot agree with the [Sheriff’s] judgement at all.’ The issue was a simple one, said the judge. ‘A certain sum of money had been sent by A to B to be delivered to her. That is really what it comes to, and that B declines to deliver it’. Lord Dundas agreed: the Sheriff had ‘fallen into error’ . . . there was a
non sequitur
about his judgement. Lord Guthrie added: ‘The Sheriff has clearly indicated that he has no sympathy with the defender (Andrew Hume’s) position . . . the defender was not only bound to know, but actually did know, that he was getting this money for Miss Costin and not for himself at all.’ The appeal was allowed and Mary Costin was awarded costs.