Scottish Court of Session Decisions

Mary Catherine Costin, residing at Buc-cleuch Street, Dumfries, pursuer, brought an action in the Sheriff Court, Dumfries, against Andrew Hume, music teacher, residing at George Street, Dumfries, defender, in which she sought to have it found and declared that the defender had no right of property, or other right, title, or interest, in a sum of £67, 2s. which was remitted to him on or about 2nd January 1913 out of the “Titanic” Relief Fund, by the committee in charge thereof, through Mr Percy F. Corkhill, the Town Hall, Liverpool; that the sum in question was remitted to the defender for the benefit of the pursuer and her pupil child, who was born on 18th October 1912, and to be paid over by him to the pursuer; and that the defender was bound to pay the sum in question with interest thereon to the pursuer; and for decree ordaining the defender to make payment of the sum in question with interest.

The pursuer averred, inter alia—“(Cond. 1) The late John Law Hume, who was one of the bandsmen on the White Star Liner ‘Titanic,’ was drowned in the wreck of that vessel in mid-Atlantic on or about 15th April 1912. He was a son of the defender and resided with him. (Cond. 2) At the date of the death of the said John Law Hume the pursuer was engaged to be married to him. (Cond. 3) Immediately after the wreck of the ‘Titanic,’ public subscriptions were opened for the benefit of the dependants of those who had perished in the disaster, including a fund known as the Mansion House Fund, which was administered by a committee under the Lord Mayor of London. As the pursuer was about to become the mother of a child, of which the said John Law Hume was the father, she, through her agent, Mr G. T. Hendrie, solicitor, Dumfries, lodged an application for a grant from the said fund on or about 28th June 1912. A reply was received from the Daily Telegraph, London, in these terms—‘As this fund is working in cooperation with the Lord Mayor's Fund in the distribution of temporary relief, the letter addressed to the Mansion House has been forwarded to us. Will you please furnish information as per form enclosed.’ The form was duly filled up and returned to the Daily Telegraph, and in reply they wrote to Mr Hendrie as follows:—‘We are now in receipt of the form in favour of Miss Costin. We are quite willing to regard this claim sympathetically, but not at the cost of casting a slur upon the family of the deceased man Hume. The father writes to us contesting the claim which you are presenting, and alleges that he as most conclusive proof that his son was not responsible.… In these circumstances the Daily Telegraph must await further proof from you.’ It was not possible for pursuer to take proceedings to establish the parentage of her child until it was born. (Cond. 4) By letter dated 8th October 1912 the Daily Telegraph wrote Mr Hendrie as follows:—‘It rests with you to bring the claim of Miss Costin to the notice of the Mansion House Fund for permanent relief, and you should address yourself to the Public Trustee, 3/4 Clements Inn, Strand, W.C.’ Accordingly on 9th October 1912 Mr Hendrie lodged particulars regarding pursuer's claim with the Public Trustee, who duly acknowledged the same. On 18th October 1912 the pursuer's child, a daughter, was born, and intimation was on same date sent to the Public Trustee. By letter dated 21st October 1912 the Public Trustee wrote to Mr Hendrie—‘I have to acknowledge receipt of your letter of 18th inst. informing me that an infant child has now been born in the Costin case. This child has now been entered on the schedule of dependants, and her mother will receive consideration for relief in respect of herself and the child in due course.’ (Cond. 5) By decree dated the 2nd and 3rd, both days of December 1912, in an action in the Sheriff Court at Dumfries at the instance of the pursuer against the defender and others as representatives of the said deceased John Law Hume, the Sheriff-Substitute found and declared (First) that the said John Law Hume was the father of the female child of which the pursuer was delivered on Friday 18th October 1912, and (Second) that the pursuer was entitled to recover out of any estate left by the said John Law Hume the sums after mentioned, namely—£2, 2s. for inlying charges, and £6, 10s. sterling per annum for ten years as aliment for said child, payable said aliment quarterly in advance, and beginning as from said date of birth, with interest thereon from the respective dates of payment and £13, 0s. 4d. of expenses. Said decree was pronounced after evidence led, and the child is still alive. (Cond. 6) On 11th December 1912 Mr Hendrie sent a copy of said decree to the Public Trustee, and in reply received a letter dated 16th December 1912 stating that he had forwarded the copy decree to Mr P. F. Corkhill, honorary secretary of the Liverpool Titanic Fund, whose committee

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was dealing with the case, and Mr Hendrie was requested to communicate direct with Mr Corkhill in future at the Town Hall, Liverpool. Mr Hendrie accordingly did so, and received a reply from Mr Corkhill, dated 18th December 1912, that the claim was having attention. (Cond. 7) As Mr Hendrie did not hear further from Mr Corkhill for several months, he caused inquiries to be made, and ascertained that Mr Corkhill's committee had considered the pursuer's claim with the copy decree before them, and had resolved to make a grant for the benefit of the pursuer and her child out of the funds at their disposal of £67, 2s., being a sum equal to the total amount of aliment and inlying expenses awarded under said decree. This sum was remitted by Mr Corkhill to the defender on 2nd January 1913. It was acknowledged by the defender by letter dated 3rd January 1913, in which he said—‘I note that the cheque you enclose corresponds in value to the claim which I am given to understand has been put forward on behalf of Miss Costin.’ The defender prior to that date had been in correspondence with Mr Corkhill, making and urging claims on his own behalf, and urging that the pursuer's claim should not receive consideration by the committee. But Mr Corkhill made it clear to the defender that the committee did not and could not regard the defender as in any way dependent on the deceased, and that the pursuer's claim was a good one, as the committee believed it was the intention of the deceased to marry the pursuer, in which case he would have had the obligation of a wife and child.… (Cond. 8) The said remittance of £67, 2s. was made to the defender under the erroneous impression that the foresaid decree was binding upon him personally, and that he either had implemented or would implement the same by payment of the full sum down. He had, in fact, alleged to the committee that the pursuer's claim had been settled. The remittance, in fact, was made to the defender for the benefit of the pursuer and her child, and was not, to any extent or in any sense, a payment to the defender personally for his own benefit.… (Cond. 9) Having ascertained the foregoing facts regarding the remittance of £67, 2s., Mr Hendrie, on 25th April 1913, applied to the defender for payment, and in answer the defender wrote on 26th April 1913—‘I have not received any sum of money to be paid to your client; had it been otherwise I would have adopted one of two courses, viz., either sent the sum to you or returned it to the sender. The sum to which you refer was sent me as a full payment of my own personal claim, of which I have full confirmation thereof.’ This was duly communicated to Mr Corkhill, who, after making thorough inquiry, wrote to defender on 18th June 1913 informing him definitely that the money was intended for the benefit of pursuer and her child, and not in any sense for defender's own benefit. But in the face of that intimation the defender still lays claim to the money, and his agents, Messrs Whitelaw & Edgar, solicitors, Dumfries, on 28th June 1913, wrote to Mr Hendrie as follows—‘We have seen Mr Hume and are instructed by him to say that the £67, 2s. which he received was intended for him, and he is therefore not prepared to pay over any part of that sum to your client (the pursuer).’ The defender is thus fraudulently attempting to appropriate the said money, and the pursuer has been compelled to raise the present action. In consequence of defender's denial that he received Mr Corkhill's letter of 18th June 1913, Mr Corkhill on 23rd July 1913 sent defender a copy of said letter by registered post. Both letters were duly received by defender.…”

The pursuer pleaded, inter alia—“(1) The sum of £67, 2s. having been remitted to defender for the benefit of the pursuer and her child, and not to any extent for the personal benefit of the defender, and the defender having laid claim thereto as his own personal property, the pursuer is entitled to decree of declarator and payment in terms of the prayer of the writ. (4) The defender having fraudulently laid claim to said money after direct intimation from the sender that it was not for the defender's personal benefit, the pursuer is entitled to declarator and payment as craved.” [The words printed in italics were added by amendment in the Inner House.]

The defender pleaded, inter alia—“(1) No title to sue. (3) The averments being insufficient to support the conclusions of the writ, the action should be dismissed with expenses.

On 21st October 1913 the Sheriff-Substitute ( campion) sustained the first plea-in-law for the defender and dismissed the action.

Note.—“… The difficulty I have had all along in the case is whether the pursuer is one who has a title to sue this action. It is a case of a gratuitous contribution granted by the committee of the Titanic Relief Fund for the benefit of pursuer and her child. But the pursuer would not have been in the position of having a title to sue said committee for the sum in question. If so, she cannot have now a better title to sue anyone in whose hands the sum awarded may through some misunderstanding be deposited. This would appear rather to be a case of condictio indebiti. ‘If the payment have been made under an unavoidable error in fact (affecting the payee's right to receive the money) restitution may be demanded’ (Bell's Prins). And thus, however careless a person paying in error may have been, he may recover back what he has paid from one who had no right to receive it, provided only he has not intended to waive all inquiry, and meant the payee to have the money at all events. From the correspondence produced it is clear that the person paying in error did not intend to waive all inquiry, and mean the payee to have the money.

“The sum in question may have been remitted to the defender Hume under the erroneous impression that the defender had already settled with the pursuer for the sum of £67, 2s. awarded under the Sheriff Court decree, or was still in some way

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responsible for payment of the same, or at all events that the money would thus reach the pursuer. But the pursuer then was not the person who made the payment in error, and therefore not the person with title to sue for repayment of the same. I am therefore of opinion that this action as brought is not in the circumstances the appropriate remedy.”

The pursuer appealed, and argued—This was not a case of condictio indebiti. The Relief Committee had parted with the property in the money, which now belonged to the pursuer, and in the present action she was simply indicating her right to obtain possession of it— Brierly v. Mackintosh, June 1, 1843, 5 D. 1100, aff. 5 Bell's App. 1.

Argued for the defender—The pursuer had no title to sue. She could not have sued the Relief Committee for the money, and she had no assignation from them of their right in the money— Pyper v. Christie, November 8, 1878, 6 R. 143, per Lord Young at p. 145, 16 S.L.R. 67; M'Donald v. M'Coll, June 17, 1890, 17 R. 951, 27 S.L.R. 761; Hunter v. Hunter, November 24, 1904, 7 F. 136, 42 S.L.R. 92; Hislop v. Macritchie's Trustees, June 23, 1881, 8 R. (H.L.), 95, 19 S.L.R. 571; Tweddle v. Atkinson, 1861, 1 B. & S. 393; Mackay, Manual of Practice, p. 126; Pollock on Contracts (8th ed.), p. 223.