Cowley (Earl) v Cowley (Countess)

House of Lords 
31^st July 1901

On Appeal from the Court of Appeal

Before (the judges sitting on the bench)

• Lord Halsbury , the Lord Chancellor
• Lord Macnaghten 
• Lord James of Hereford 
• Lord Brampton 
• Lord Lindley 

The parties to the case

• Henry Arthur Mornington Wellesley, Earl Cowley (the Appellant)
• Violet Myddleton, Countess Cowley (the Respondent)

Counsel (the barristers representing the parties)

• Mr Haldane, K.C., Mr Bargrave Deane, K.C., and Mr C.J. Willock on behalf of Earl Cowley, the Appellant
• Mr Lawson Walton, K.C., and Mr Mark L. Romer on behalf of Countess Cowley, the Respondent

Summary of the facts

This was an appeal from an order of the Court of Appeal dated 8^th August, 1900, reversing in part an order dated 7^th January, 1900, of Mr Justice Barnes made upon motion brought by the appellant against the respondent in the Probate Division.

The question on this appeal was whether the appellant was entitled to an injunction restraining the respondent, who was formerly his lawful wife, but who has, since the dissolution of her marriage with the appellant, re-married, from describing herself as Countess Cowley.

On 17^th December, 1889, the respondent, then being Lady Violet Nevill, spinster, a daughter of the Marquis of Abergavenny, was married to the appellant, then Viscount Dangan.  There was issue of the said marriage, one child, Christian Arthur, Viscount Dangan, born on 25^th December, 1890.  On 17^th June, 1896, the respondent presented a petition for the dissolution of her marriage with the appellant on the grounds of his desertion and adultery.  On 2^nd February, 1897, a decree nisi was pronounced by the Court, dissolving the marriage, and committing the custody of the child to the respondent, and was, on 9^th August, 1897, made absolute.  On 19^th July, 1898, the respondent was married to Robert Edward Myddleton.  Both after the dissolution of her marriage with the appellant and after her marriage with Mr Myddleton the respondent continued to describe herself as Violet, Countess Cowley, and to sign her name as Violet Cowley.

On 2^nd August, 1899, the appellant served the respondent with a notice of motion purporting to be given in the divorce proceedings for an order (amongst other things) that the respondent might be restrained from bearing the name and arms of the appellant.  The appellant, on 6^th December, 1899, served the respondent with a second notice of motion for (amongst other things) an order to the like effect.

The said motions were heard by Mr Justice Barnes on 15^th December, 1899, when his Lordship intimated that the question between the parties could not be tried upon motion in a divorce suit which was at an end, except for the purpose of application with regard to the custody, maintenance, and education of the child of the marriage during his minority.  It was thereupon agreed by counsel for the parties that the motion should be treated as if it were a motion to restrain the respondent from using the style or title Countess Cowley in an action for that purpose, brought in the High Court.

On 7^th February, 1900, the learned Judge delivered judgment restraining the respondent from using the style or title of Countess Cowley, but suspended the effect of the order pending an appeal to the Court of Appeal.  The Court of Appeal reversed the order of Mr Justice Barnes, so far as it referred to the use of the title Countess Cowley.

Arguments submitted by counsel

The arguments were heard on the 19^th and 22^nd inst.

Judgment

The Lord Chancellor, in moving that the appeal be dismissed with costs, said —

In my opinion the reasoning of the Court of Appeal was just and sound.

It is desirable, however, to consider whether any such suit as the present could in any circumstances be entertained.  If there were elements of annoyance or malice an action on the case might perhaps be maintained.  But there is no question of malice, no annoyance, no implied assertion of a subsisting marriage so as to give rise to a suit for jactitation.

The simple question is whether this lady, who bona fide claims the right to be known by the name by which during the whole period of her married life with the appellant she was known, is entitled to retain that name notwithstanding the fact that she has re-married.

It seems to me absolutely clear that no such suit can be maintained.

I confess I do not know what jurisdiction the Divorce Court has to deal with this matter at all.  It appears to have been assumed that there was involved some reference to the divorce.  But it is not a question of divorce at all; nor has the Divorce Court any right to determine it — no such right is given simply on the ground that there has been a divorce suit.  The lady succeeded in getting rid of her husband, and claims for herself to retain the name by which she had theretofore been known.  What jurisdiction Mr Justice Barnes had to entertain such a claim I am at a loss to understand.

If Mr Haldane had been successful in suggesting that this was a case in which there was a sort of territorial right, he would by another process have shown that he was absolutely out of Court.  What jurisdiction has any Court of law to determine a question of dignity?  If there is a claim for such a right that jurisdiction would be vested in this House, not as a Court of Appeal, or as a Court of law, but as a Committee for Privileges.  The learned Judges of the Common Pleas have held that they cannot by a side-wind determine any such claim.

There is not the slightest shadow of foundation for this suit; and I am a little surprised that Mr Justice Barnes, in his elaborate and learned argument, should never have considered what a curious thing it would be in our jurisprudence if it could be considered convenient or desirable to invent a new jurisdiction and to apply it to matters with which the Court had no concern whatever.  It is not a very abstruse point.  It was admitted that no such case had ever been heard of, and it has been laid down that no dignity or honour can be tried by a Court of law.

For these additional reasons, besides those given by the Court of Appeal, this claim for an injunction ought to be disallowed.

Lord Macnaghten —

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 the became Countess 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 Lord 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 countess 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 Countess 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 cognisance of a Court of law.  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 counsellors and others his subjects as should be seeming to the King’s most excellent wisdom.”

There is another answer which to my mind is equally conclusive.  It is that Lord Cowley has not suffered either a legal wrong or damage.

Mr Haldane argued that a legal wrong 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 I 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 Dowager 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 a dowager.

But it seems to me that there is no substance in Lord Cowley’s complaint, and that he at least suffers no damage.  And, therefore, even if the matter were cognisable 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 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 thing 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 and Lord Brampton concurred.

Lord Lindley —

By letters patent under the Great Seal, dated 11^th April, 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, 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 1887 Earl Cowley married Lady Violet Nevill.  She was a daughter of a peer, and therefore of noble blood, but was not a peeress in her own right.  When her husband became Earl Cowley she acquired an estate for life in his dignity (see Co. Litt., 166, and Cruise’s Dig. Tit., xxvi., c. 1, s. 86).  Her life estate was not determinable on the death of her husband, but was determinable on a second marriage with a commoner (Co. Litt., 166).  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 Countess 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 had already acquired; and 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 Goldsmith (L.R. 2, P.D., 263; 46 L.J., P.D. and A., 70) goes far to show that, so far as the name is concerned, the countess 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 was entitled by birth, her life estate in the dignity which she had acquired by marriage ceased (see Co. Litt., 166).  All the authorities are clear upon that point, whatever doubt there may be as to the effect of a lady’s marrying a peer lower in dignity than her first husband.

But although by her second marriage the Countess 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 (1661, p. 298)  shows 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 Countess Cowley.  Mr Justice Barnes decided this question in favour of the earl, and granted an injunction restraining her “from using the style or title of Countess Cowley.”  The Court of Appeal reversed this decision, and the earl has appealed to your Lordships to restore it.

My lords, we are not now sitting as a Committee for Privileges to determine a claim to the dignity created and granted by the letters patent of 1857.

The lady calls herself, and is called in society, Violet, Countess 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 (see Cruise on Dignities, c. 6).

The appellant’s counsel urged your Lordships to take the view that the countess was disturbing the earl in the enjoyment of this 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, nor 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. Dig., 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, Part I., page 283, second edition.  The judgments of Chief Justice Tindal  in Davies v Lowndes (1 Bing. N.C., 618; 4 L.J., C.P., 214), and of the Privy Council, delivered by Sir R. Phillimore in “Du Boulay v Du Boulay” (L.R., 2 P.C., 430; 38 L.J., P.C., 35) leave no doubt about it.

Sir R. Phillimore, in “Du Boulay v Du Boulay” 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.”

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 countess the privilege of using the name, style, and title which the earl complains of her using.

The case cannot be brought within section 28(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.

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Orders of the court

Appeal dismissed with costs.