delivered the opinion of the Court in the ensuing June term in Lincoln ; observing that the question must be decided on the facts as they existed at the time the process was served ; and that at that time Dennett had no right of action against Richardson ; for he had not then either paid the note for which he was surety, nor absolutely assumed the debt himself, by giving a new security, and discharging Richardson from his liability. Neither of these things having been done, the court must, according to settled principles, consider him as trustee, though the case seems to be a hard one for the defendant.
Trustee charged,