
    Burke versus Adams.
    In a suit on a book account against “ C. B., a feme sole trader,” an affidavit of defence that the defendant “is not now and never has been declared a feme sole trader, and is not now and never was such,” is sufficient to orevent judgm ent for want of a sufficient affidavit of defence.
    January 23d, 1884.
    Before Mercur, C. J., Gordon, Paxson, Trunkey, Steebett, Green and Clark, JJ.
    Error to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term, 1884, No. 71.
    This was, in the court below, an appeal from the judgment of a magistrate, in a suit by Andrew Adams and Itichard Sheldon, late trading as Sheldon & Adams, against “ Catharine Burke (a feme sole trader.) ” Plaintiff filed in the Common Pleas a copy of book entries charged against “ C. Burke.” Defendant filed the following affidavit of defence:
    “ That she is now and was at the time of the issuing of the summons in this case, a married woman, tiie wife of Joseph E. Burke, to whom she was married on the 4th October, 1860, and that she has lived and cohabited with him as his wife ever since. That this deponent is not now and never has been declared a feme sole trader, and is not now and never was such.”
    Plaintiff took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, which the court made absolute, whereupon the defendant took this writ of error, assigning for error the said judgment.
    
      W. A. Manderson, for the plaintiff in error.
    JV. Dubois Miller ( O. H. Krumbhaar with him), for the defendant in error.
    — The affidavit is insufficient in that it fails to deny that the defendant had traded as a feme solo; it is not enough to deny that she is or has been declared ruch, as she
    
      may engage in business and render herself liable as a feme sole without being actually and technically a feme sole trader; that she did so trade is in effect imputed by the record, and as she did not deny it, the affidavit was insufficient. Black v. Tricker, 9 P. F. S., 13 ; Cleaver v. Scheetz, 20 P. F. S., 496 ; Bovard v. Kettering, 5 Out., 181.
   Chief Justice Mercur

delivered the opinion of the court, October 6, 1884.

This suit was against Catharine Burke as a feme sole trader oply. It was in that capacity only that a recovery against her was sought.1 Her husband was not joined with her in the action. Her affidavit of defence avers, inter alia, that she was then, and at the time of the issuing of the summons a married woman, ’the wife of Joseph E. Burke, to whom she was married oh the 4th of October, 1860, and that she had lived and cohabited with him as his wife ever since. She further averred “that this deponent is not now and never has been declared a feme sole trader, and is not now and never was such.” This certainly is a positive and distinct denial of the existence of the alleged fact, on which the right to recover against her was based. If there be any other it is not averred in the pleadings. Whether some other grounds may be shown on the trial to maintain the action, is a question not now before us. When an affidavit of defence distinctly and unequivocally denies the fact, without which a recovery cannot be had, the court should not hold it insufficient. This affidavit does so deny such a fact.

It follows the learned Judge erred in ordering a judgment to be entered for want of a sufficient affidavit of defence.

Judgment reversed and a procedendo awarded.  