
    
      Charles P. Sheer vs. William Austin, administrator of Lucretia Austin.
    
    In an action against an administrator, in order to make a married woman, who was one of the distributees of the intestate, and her husband, competent witnesses for the defendant, they executed a joint release to the defendant of her share in the estate and of all liability to account. Held, that the release was sufficient to render them competent.
    
      Before Evans, J. at Charleston, Fall Term, 1845.
    This was an action of assumpsit on a promissory note for four hundred dollars, drawn by Lucretia Austin, the intestate of the defendant. Mr. and Mrs. McCants were offered as witnesses for the defendant. Mrs. McCants was a daughter of the intestate and one of her heirs at law. In order to render her and her husband competent, they executed, jointly, an instrument, under seal, whereby, “for •valuable consideration,” they transferred to the defendant the share of Mrs. McCants in her mother’s estate and released him from all accountability. His Honor held that the release was sufficient, and the witnesses were examined. The jury found for the defendant, and the plaintiff appealed, on the ground, inter alia, that Mr. and Mrs. McCants were incompetent witnesses.
    
      Walker, for the motion.
    So far as the instrument is to be considered as the deed of the wife, it is void. It must then be regarded as the release of the husband alone. Now, a husband cannot assign his wife’s choses in an action except for valuable consideration, and it does not appear that there was any valuable consideration passing between the parties in this case ; indeed it is manifest, from the whole transaction, that the deed was only executed to render the witnesses competent, and sur.ely such a motive for the execution cannot be regarded as a valuable consideration. Does the seal imply a valuable consideration ? It. does so doubtless as against the husband, but as against the wife, who is no party to the deed, and is not estopped by the seal, the true consideration may be inquired into. He cited Clancy on M. W. 122 ; 1 Russ. C. R. 1; 1 Bail. 568; 4 Cru. Dig. 22 ; 2 Ves. 675.
    
      Yeadon, contra.
    The release, on its face, expresses that it was given “for a valuable consideration.” These are the words of the instrument, and they are at least sufficient to throw the onus of shewing that there was no consideration, upon the party alleging that there was none. But it is unnecessary to look beyond the seal. That of itself implies a consideration sufficient to support the in* strument. 4 McC. 324. That a husband may assign his wife’s vested interest is not questioned. 3 Russ. C. R. 65; Clan, on M. W. 220 ; 1 Rich. Eq. 76.
   Curia, per Evans, J.

The only question insisted on in this case, and the one to which the attention of the Court has been directed, is that which relates to the competency of McCants and wife. As one of the distributees, Mrs McCants and her husband were incompetent, unless rendered competent by the release. The release operates, according to its terms, as a transfer to the defendant of her share in her mother’s estate, and a release of all accountability. It must be regarded as the act of the husband alone. The wife’s joining in it creates no obligation. She is a married woman and her deed is void. This presents the question, whether the husband can release and discharge his wife’s choses in action, so as to bind both her and himself. On this question there seems to me to be no doubt. The law is so stated in the elementary books, (see Clancy, 220,) and is recognised in the case of Terry vs. Brunson, 1 Rich. Eq. 78, although in that case it is said he cannot assign her contingent interest. But it is object* ed that the release was without consideration, but that is more than I know. It is expressed on the face to be for valuable consideration, and is under seal. It is not therefore nudum pactum, for any thing that appears. It may be that if the assignee had to go into Equity to get possession, that Court would regard him as in no better condition than the husband, if the release was without consideration, and compel him to make a settlement. But that can never occur in this case, as the defendant is the administrator and already has the possession. I think, therefore, the release was sufficient, and that the witnesses, McCants and his wife, were competent, and the motion is dismissed.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  