The question whether the release of the husband is a complete and effectual bar to the equitable rights of the wife and her children, in a case like the present, does not properly arise upon this plea. So far as the rights of the husband are concerned, he has an unquestionable author
The wife, by her next friend, may file a bill against her husband, or against her husband and a third person, to protect her separate estate, or to prevent her husband and others, from depriving her of her equitable provision for a support out of property which belongs to her in equity, although the husband has, at law, the legal right to sue for and control it. But a bill filed in this court, in the name of the husband and wife, is in fact the bill of the husband. (Pawlet v. Delaval, 2 Ves. sen. 666. Griffith v. Hood, Idem, 452.) If the husband dies before a'decree in the cause, she may proceed in the suit, or not, at her election. And if she refuses to proceed, she is not liable for costs. (Breedon v. Vaughan, 2 Dickens, 566. Mitf. Pl., 4 Lond. ed. 59.) This being the husband’s suit, he had a right to release it, so far as to bar the further prosecution of the suit in his name. And if that release was a fraud upon the rights of the wife, she must institute a new suit, against her husband and the present defendant, by some responsible person as her next friend, to set aside the release, and to obtain her rights. The plea is allowed, and the bill must be dismissed: but without prejudice to the rights of the wife, if she has any.