Opinion by

The answer in this case presents a defense to the cause of action. The assignor obtained this note, knowing that the obligor was a non-resident. He therefore undertook to pursue his remedy, or to exhaust it at least, in the state where the debtor lived. Such are the allegation's of the answer, and they must be taken as true. Brinker v. Perry, 5 Littell 194.

The petition is defective. It fails to allege the insolvency of the payor, and that he has no property in the state out of which the debt could be made. The judgment of the court below is reversed, and the cause remanded with directions to award the appellant a new trial and for further proceedings consistent with this opinion.