A B v. C B and G H

Held that there was a declaratory conclusion against G H; that he was therefore entitled to have a judgment on the question of whether adultery was proved against him or not; that the Court could not decide that question without hearing the evidence, and were entitled to the opinion of the Judge of first instance upon it; that therefore the case must go back to the Lord Ordinary in order that he might decide whether adultery was proved against G H, and if not, whether decree of dismissal or absolvitor should be pronounced.

On 29th June 1911 A B, pursuer , brought an action of divorce against his wife C B, defender , in which the conclusion of the Page: 69 ↓

On 13th April 1912 the Lord Ordinary ( Dewar ) pronounced this interlocutor—“Finds facts, circumstances, and qualifications proved relevant to infer the defender's guilt of adultery: Finds her guilty of adultery accordingly, and therefore divorces and separates the defender from the pursuer, his society, fellowship, and company in all time coming: Finds and declares in terms of the conclusion of the summons, and decerns.”

Opinion .—“This is an action at the instance of A B against his wife for divorce on the ground of adultery with G H. Mrs B does not defend the action. She has admitted the adultery both by extrajudicial confession and on oath. But G H has appeared in the case, and has lodged a minute of amendment denying the adultery and averring that the action is collusive, and that the pursuer and defender are acting in concert together for the purpose of extorting money from him.

Argued for pursuer and respondent—G H came into the case voluntarily, and could not take advantage of a case not brought against him to escape liability to another action for damages brought directly against him. Therefore the correct course would be to dismiss the action. Counsel referred to the case of Miller v. Simpson , December 9, 1863, 2 Macph. 225 .