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(1900) JELR 87100 (HL)

House of Lords  •  30 Jul 1900  •  United Kingdom



EARL OF HARSBURY L.C, My Lords, in this case I wish to say that if the matter were res integra, and if what I am about to say did not arise, the reasoning of the Court of Appeal appears to me to be just and sound, and I should move your Lordships that the appeal be dismissed with costs; but I think it is material that one should consider for a moment whether or not any such suit can be entertained. I do not wish to express any final opinion as to whether such a suit could be maintained if there were the elements of annoyance or malice, though I confess there is a doubt in my own mind whether even in such cases an action on the case would not be very difficult to maintain; but given, as it is assumed here, that there was so malice and no annoyance, and no either implied or expressed assertion of marriage so as to give rise to a suit of jactitation, the simple broad question being whether this lady who, it is not doubted, bona fide, claims a right, and intends to claim a right, to be known by the name by which during the whole period of her married life she undoubtedly was known, can retrain that right notwithstanding the divorce, it seems to me absolutely clear that no such suit could be entertained.

My Lords, more than one reason occurred to my mind in considering this question. I do not know what jurisdiction the Divorce Court had in dealing with this matter at all. It seems to have been assumed that it had reference to the divorce; but Mr. Haldane has very candidly admitted that it is not a question of divorce at all, nor has the Divorce Court by any stretch of its jurisdiction any right to determine this question simply because where has been a divorce suit, and the lady who by her petition has succeeded in getting rid of her husband now claims to call herself by the name by which she has been known. What jurisdiction Gorell Barnes J. had to entertain this question I confess I am wholly at a loss to understand. And, further, it seems to me that if Mr. Haldane had been successful in suggesting that this was a case in which there was a sort of territorial right in respect of a dignity, he would only by another process shew that he was hopelessly out of Court; because what jurisdiction has any Court of Law to determine a question of a dignity? I am not aware of any such jurisdiction. If indeed there was a claim to such a right, the jurisdiction would be vested in this House not as an Appellate Court from a Court of Law, but in its own inherent jurisdiction as the Committee for Privileges. It has been laid down that no question of honour can be tried by a Court of Law. Where there was a question of a fine quoted in Collins, and ancillary to it a question of a dignity, it was said by the learned judges in that case that they are not going to allow by a side-wind a matter outside their jurisdiction to be brought in upon the pretence that there is a question which the ordinary Courts by an action in the Court of Common Pleas had a right to determine.

Under these circumstances it appears to me there is not the faintest shadow of a foundation for this suit, and I am a little surprised that in the elaborate argument of the learned judge, Gorell Barnes J., he should never have considered at all what a curious thing it would be in our jurisprudence if because a thing might be considered convenient, and, I will assume for the sake of argument, desirable, therefore you could invent a new jurisdiction and apply it to a matter with which that Court has no concern whatever.

My Lords, under these circumstances I have thought it right to say this much. I think it is not a very abstruse point. It is admitted by everybody that no such case was ever heard of before, and that the question might equally arise, not only in the case of two persons divorced, but even in the case of a courtesy title to certain ranks of peerage. That a Court of Law should concern itself with such a question as that is certainly not a thing to be desired, but it is enough to say that for a Court of Law there is no foundation for any jurisdiction, and there is no precedent to be found where such a question has ever been decided. My Lords, under these circumstances, for these additional reasons besides those which the Court of Appeal have given, and with which I entirely concur if the matter was to be reasoned upon that footing at all, I think this appeal ought to be dismissed and with costs; and I move you Lordships accordingly.

LORD MACNAGHTEN. My Lords, I am of the same opinion and substantially on the same grounds.

It seems to me that the present controversy between Earl Cowley and the lady who was his wife is a matter with which no Court of Law has any concern.

The position of the parties is clear enough. In 1889 Lady Violet Nevill married Lord Dangan. On his succeeding to the Earldom of Cowley she became Countless Cowley, and entitled to the privileges of peerage. She obtained a divorce from her husband on the ground of his misconduct. It was conceded, and I suppose rightly conceded, that there was nothing in her position as the divorced wife of Earl Cowley to deprive her either of the title or the privileges which she had acquired as his wife. Then she married a commoner, and thereupon she lost her right to the title of Countless and the privileges of peerage. Still everybody knows that it is a very common practice for peeresses (not being peeresses in their own right) after marrying commoners to retain the title lost by such marriage. It is not a matter of right. It is merely a matter of courtesy, and allowed by the usages of society. In accordance with this usage the respondent still calls herself Countless Cowley. The appellant complains. He says she has no right to do so. That is perfectly true. And then he claims an injunction from a Court of Law to prevent his late wife using that designation on the ground that it is an invasion or disturbance of the dignity which belongs to him as an incorporeal hereditament.

The answer seems to be two-fold. If it be a disturbance of a dignity, that is a matter not within the cognizance of a Court of Law. The right to a peerage can only be tried before the peers. The right to a peerage can only be tried before the peers. And it was declared long ago that “it appertained altogether to the Royal prerogative to give such honour, reputation, and placing to his counselors and others his subjects as should be seeming to the King’s most excellent wisdom.” (1)

There is another answer which to my mind is equally conclusive. It is that Lord Cowley has not suffered either legal wrong or damage. Mr. Haldane argued that a legal had been done to him because the respondent without colour of right claimed to share or participate in his incorporeal hereditament – the Earldom of Cowley. For my part 1 must confess I cannot understand in what sense it can be said that the lady claims to participate or share in this hereditament. I can understand the other Lady Cowley complaining. It is, or may be, inconvenient to her that another lady should use the same title which may have the effect of relegating her to the less coveted style of Dowager. But it seems to me that there is no substance in Lord Cowley’s complaint, and that be at least suffers no damage. And, therefore, even if the matter were cognizable at law, I should hold that there was no right to an injunction. There is no precedent for such an order, and I should be very sorry to advise your Lordships to make a precedent in this case.

Lady Dacre’s case, on which Mr. Haldane relied, seems to me not to be altogether in his favour. This House declared on the opinion of the judges present that the Lady Dacre , by marrying Mr. Chute, a commoner, had lost her privilege of peerage in law. But still it is to be observed that the resolution of this House speaks of her as “the Lady Dacre,” from which I think it may be inferred that the adherence to that style, even after the privilege of peerage was lost, was not so shocking a think as Mr. Haldane would have your Lordships to understand.

I am, therefore, of opinion that the appeal must be dismissed with costs.

LORD JAMES OF HEREFORD. My Lords, there being no pleadings in this case, your Lordships must look at the arguments of counsel to learn upon what ground the present application for an injunction is made. From those arguments I gather that the injunction to restrain the respondent from terming herself Countless Cowley is based on the following grounds: It is said that Lord Cowley being in possession of the Earldon holds an incorporeal hereditament, which is property, in the possession of which he alleges he has been disturbed by the retention of the name of Countless Cowley by the respondent. To establish the alleged disturbance I understood Mr. Haldane to argue at the bar that the respondent by virtue of her marriage with a commoner has lost her right to bear the title of nobility. It will be observed that this position in no way calls in aid the fact of a divorce having been decreed. If the respondent had been a widow, the same question as that now before your Lordships would have arisen.

Mr. Haldane’s argument was founded upon a dictum in Coke on Littleton (1 Coke 16 b) which says: “And there is a diversities between a woman who is noble by descent and a woman that is noble by marriage. For if a woman that is noble by descent, marrie one that is under the decree of nobilities yet she remaineth noble still; but if she gaineth it by marriage, she loseth if it she marry under the degree of nobilitie and so is the rule of be understood, si lulier nobilis nupserit ignobilidesinit eese nobilis. But if a duchesse by marriage marrieth and baron of the realme, she remaineth a duchesse and loseth not her name, because her husband is noble; et sic de caeteris.”

My Lords, it may be that this dictum of Lord Coke is quite correct. I express no opinion upon that. But the disregard of it in my opinion does not constitute a disturbance of any property. Effect may be given to it if, for instance, in Parliament the respondent sought to plead her privilege of Parliament. But the case now before your Lordships is by way of appeal from a decree of a Court of Law, and in my opinion such Courts have no power to control the action of a person who, under the conditions existing in this case, assumes the name, not for the purposes of fraud or molestation, but on a bona fide claim of right.

I further concur with the views which have been expressed by my noble and learned friend on the Woolsack and Lord Macnaghten, that the jusridiction to try all questions of right connected with peerage and all dignities connected with peerages lies in this House and not in a Court of Law.

LORD BRAMPTON. My Lords, I so entirely agree in the judgment which has been pronounced by the Lord Chancellor that I think it is unnecessary to add one word.

LORD LINDLEY. My Lords, by letters patent under the Great Seal, dated April 11, 1857, the dignity of the Earldom of Cowley was granted to the then Baron Cowley and the heirs male of his body. The dignity so granted was an incorporeal hereditament: Cruise’s Dig. Ch. 4, par. 1; and such hereditament was granted for an estate in tail male. In 1895 this estate became vested in the present Earl, and it has ever since been and is now vested in him.

In 1889 the present Earl Cowley married Lady Violet Nevill. She was a daughter of a peer, and therefore of noble blood; but she was not a peeress in her own right. When in 1895 her husband became Earl Cowley she acquired an estate for life in his dignity: see Co. Litt. 16 b. That has been the law ever since Coke’s time, and it is not, I believe, disputed. Her life estate was not determinable on the death of her husband, but was determinable on a second marriage with a commoner: see Co. Litt. 16 b. So long as her life estate in the Earldom was undetermined she was entitled to the honour and dignity of a peeress and to the name attached to it.

In 1897 the Countless Cowley obtained a divorce from her husband; but, although the divorce dissolved her marriage, it did not determine her life estate in the peerage which she has already acquired. There is no principle of common law, nor is there anything in the Divorce Act, which produces any such result. The case of Fendall v. Goldsmid (1) goes far to shew that so far as name is concerned the Countless was entitled to continue after the divorce to use the name and style which she had previously acquired the right to use.

In July, 1898, however, Lady Cowley married a commoner, and it seems clear that, although she did not lose the position to which she had acquired by marriage ceased: see Co. Litt. 16 b. All the authorities are clear upon that point, whatever doubt there may be as to the effect of a lady marrying a peer lower in dignity than her first husband. But, although by her second marriage the Countless Cowley ceased to be a peeress, the usages of society are such as to entitle her by courtesy to her old name. the entry in the Journals of this House in the case of Lady Dacre (2) shews the recognition of this usage by the Committee for Privileges of this House. The question your Lordships have to determine is whether Earl Cowley is entitled to an injunction from the High Court to restrain his former wife from still calling herself Countless Cowley. Gorell Barnes J. decided this question in favour of the Earl, and granted an injunction restraining her “from using the style or title of Countless Cowley.” The Court of Appeal reversed this decision, and the Earl has appealed to your Lordship to restore it.

My Lords, we are not now sitting as a Committee for Privileges to determine a claim to be dignity created and granted by the letters patent of 1857. The lady calls herself, and is called in society, Violet, Countless Cowley; she makes no claim to the peerage or to the dignity which is vested in her late husband; and if she did the High Court would not be the proper tribunal to entertain or decide such a claim. Chap. 6 of Cruise on Dignities is conclusive on that. The appellant’s counsel urged your Lordships to take the view that the Countless was disturbing the Earl in the enjoyment of his dignity, i.e., of the incorporeal hereditament to which he is entitled. On reference to the authorities relating to actions on the case for disturbance, I can find no instance of an action for disturbing a dignity; not any instance of an action for disturbing any incorporeal hereditament in the absence of actual damage. Damage is essential to the violation of such a right: see Com. Digest, Action on the case for disturbance; Roscoe on Real Actions, 353.

The controversy between the parties is thus reduced to a dispute about the use of a name as distinguished from a dignity. Speaking generally, the law of this country allows any person to assume and use any name, provided its use is not calculated to deceive and to inflict pecuniary loss. Your Lordships will find the law on this subject examined in a very instructive note from the pen of the late Mr. Waley in 3 Davidson’s Conveyancing, pt. 1, p. 283, 2nd ed. The judgment of Tindal C.J. in Davies v. Lowndess (1) and of the Privy Council delivered by Lord Chelmsford in Du Boulay v. Du Boulay (2) leave no doubt about it. Lord Chelmsford in Du Boulay v. Du Boulay (2) stated that “in this country we do not recognize the absolute right of a person to a particular name to the extent of entitling him to prevent the assumption of that name by a stranger.” Then, after alluding to trade names, the judgment continues: “The mere assumption of a name which is the patronymic of a family by a stranger who has never before been called by that name, whatever cause of annoyance it may be to a family, is a grievance for which our law affords no redress.”

My Lords, if this is true of strangers, it is a fortiori true of persons who have once acquired the right to use a name which the usages of society allow them to retain. The Court of Appeal held, and in my opinion correctly held, that the Earl’s rights are not infringed by what his late wife insists on doing. To grant the injunction asked by the Earl would not, therefore, be legally just. The inconvenience of granting it is great and obvious, having regard to the long-established and well-known usages of English society. Nor is it immaterial to bear in mind that the Sovereign can at any moment confer on the Countless the privilege of using the name, style, and title which the Earl complains of her using. The case cannot be brought within s. 25, clause 8, of the Judicature Act, 1873, which authorizes the High Court to grant an injunction in all cases in which it shall appear to the Court to be just or convenient to do so. The decision of the Court of Appeal ought in my judgment to be affirmed, and this appeal should be dismissed with costs.

Ordered, that the appeal be dismissed with costs.

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