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.