delivered the opinion of the court. The court are of .opinion, that the affidavit on (he bill obligatory in this case is sufficient to warrant the assignment under the act of 1763, ch. 23, s. 10.

To enable the assignee to maintain an action against the assignor, it is incumbent upon the assignee to prove that *287the obligor was unable to pay the debt, or that he could Pot be found in the place or county of his usual abode, or that some oilier thing or casualty did happen, whereby the assignee was not able to receive or recover Isis debt from the obligor, he, the assignee, having used due diligence therefor. What shall ¡amount to due diligence is a question of law for the decision of the court, arising upon the facts of the case.

The court do therefore reverse the judgment, and order a procedendo to issue.

ít?DGMKXT REVERSED, &C«