Opinion by
Mr. Justice Mitchell,The affidavit of defense sets up that the plaintiff is not a bona fide holder for value of the note sued on, but obtained the same after maturity, and sues in his name only for the purpose of evading the statutory prohibition against the bringing of a suit by a wife against her husband.. It further denies that defendant has deserted his wife, or forced her to leave him. This affidavit is criticized because plaintiff’s statement that the note was indorsed to him for a valuable consideration is opposed by “ a mere averment.” But that is all that was required in this stage of the case, and the learned court seems to have overlooked the rule that on.a judgment for want of a sufficient affidavit of defense the averments of the affidavit must be taken to be true.
By section 3 of the Act of June 8, 1893, P. L. 345,' it is expressly provided that a wife “ may not sue her husband except in a proceeding for divorce, or in a proceeding to protect or recover her separate property whensoever he may have deserted or separated himself from her without sufficient cause, or may have neglected or refused to support her.” If the wife had sued upon this note in her own name she would have had to bring herself by affirmative proof within the exception of the statute, and the denial of desertion, etc., in the affidavit of defense would have entitled defendant to a jury trial on that question. The statute cannot be evaded by a mere colorable indorsement to a third party. As the plaintiff admittedly took the note after maturity it has no longer the character or the efficiencj" of commercial paper in the hands of a bona fide holder for value before maturity, and defendant could make defense on that ground alone. But his affidavit goes further and, not only denies the desertion, but sets up the transfer to plaintiff as a mere device to evade the statute. Should the jury so find, the plaintiff cannot recover. The affidavit is sufficient to send the case to a jury, and to put the plaintiff upon proof that the wife is entitled to sue under the act of 1893, or that he is a bona fide holder for value.
If the latter point is made the jury should be required to find specially and separately upon it, because there would Mien arise another question, whether during marriage and cohabitation, a wife can transfer, even for value, a note of her husband as to *5which her own right of action was suspended by the marriage, so as to enable the indorsee to sue her husband. If so, she can at will nullify that provision of the statute. This is an important general question which was suggested but not argued in the case, and therefore we express no opinion upon it.
Judgment reversed and procedendo awarded.