362 HARVARD LAW REVIEW. The agreement to marry differs very often from other contracts in that it looks to the creation of a status ; so, in many instances, the ordinary rules of contracts cannot be applied. Whenever it is possible to apply them, however, without doing great injustice, they should be ; and in this case we find such an application to a state of facts rather novel. Mr. Bishop, in his Marriage, Divorce, and Separation, Vol. II. § 224, says : " Any conduct by one of the parties amounting to actual fraud will justify the other, who has been entrapped by it, in withdrawing from the agreement." This general proposition, when applied to the facts of this case, would seem to justify plaintiff in refusing to perform his contract, as a partial statement of facts is often as deceptive as a misstatement. Persons — Divorce — Collusion. — The respondent and co-respondent com- mitted adultery without the connivance of the husband. The wife had some property, and the petitioner desired to have this settled on their child after the life of the respondent. He therefore agreed to bring suit for divorce, and ask for no damages if the wife would so settle the money. The wife also deposited ;^ioo to pay the costs of petitioner. As a result of this agreement, the suit was begun, and a decree nisi obtained. The Queen's Proctor here intervenes on the ground of collusion. In his opinion the learned President of the Probate, &c., Division says, "there was no collu- sion to present to the court false facts in proof of adultery;" and "it was not shown that there were any specific facts material to defence or recrimination which might have been brought forward by the wife." The question, therefore, came squarely before the court whether collusion means an agreement to deceive the court by putting in false matter, or suppressing material matter, or whether an agreement merely as to the prosecution of the suit and costs was collusion. The court held z.V collusion is to have the broader meaning, and that there was collusion in this case. So the Queen's Proctor was entitled to succeed. Churchward v. Churchward and Hoi It day, il The Times Law Rep. 69. The English authorities are very carefully dealt with by Sir Francis Jeune, who comes to tihe conclusion that there are two or three cases in point. Lloyd -v. Lloyd, I Swab. & T. 567, is very like the present case, — the only difference being that there an agreement as to the procurement of evidence existed. In the principal case the matter is discussed on theory very ably. The learned President says: " He [petitioner] appears before the court in the character of an injured husband asking relief from an intolerable wrong; but if, at the same time, he is subjecting his rights to pecuniary stipulation, he raises more than a doubt whether, in the words of Lord Stowell, he has received a real injury and bona fide seeks relief. Mr. Bishop arrives at the same result. 2 Bish. Mar. and Div. § 28, a. Persons — Use of Wife's Separate Estate — Liability of Husband. — Where a wife allowed her husband to take legacies to her separate use and spend them in the support of the family, without any understanding whether they were a gift or a loan, held, that she might recover the amount taken. Owing to the peculiar relation of husband and wife the inference arising from a transfer of her separate property to him is that a trust was intended. The onus is on the party wishing to prove a gift. Ham- mond v. Bledsoe, 38 N. E. Rep. 530 (Ind.). The court distinguishes between a use of the principal and of the income of the sepa- rate estate, saying that in the latter case the court will presume a gift. This distinction runs through the books, appearing at least as early as 2 P. Wms. 82. The reason for it seems to be that originally the principal of the separate estate was in the hands of a trustee, who might be the husband, and he might dispose of the property without his wife's knowledge, so that it would have been unjust to presume that she consented; as to the income, however, she knew when it became due, and if she quietly allowed her husband to keep it, her consent might fairly be presumed. The reason for this distinction is past. A married woman may hold property at law; as in the principal case she may take actual possession of it; if after that she hand any of it over to her husband, whether principal or interest, may not the courts fairly presume that she intended to make a gift? Property — Equity — Cancellation of a Deed. — Where a grantor delivers a deed to the grantee without consideration, on the understanding that no title is to pass until certain security is given in return. Held, there is no valid delivery of the deed, and the grantor may obtain cancellation of the deed at any time before such security is given. Rountree v. Smith, 38 N. E. Rep, 680 (111.). The fundamental assumption upon which this case is decided is erroneous, if the decision is correctly reported. The exact words of the decree are not given, but the idea of a conditional delivery in escrow to a grantee is opposed to the whole spirit of the law. The authorities upon which the Illinois court rely for this peculiar decision
