¶1The only question for our consideration is, whether, upon the facts existing at the time of the service of the trustee process, the Hingham Insurance Company was chargeable as the trustee of the defendant. If it was, no subsequent acts upon its part, for the purpose of benefiting the principal defendant or his creditor, could discharge the trustee, nor could any subsequent act of the trustee render it chargeable. The precise and only question to be determined is, whether, at the time of the service of the process upon it, the trustee had in its hands money or other property due or belonging to the principal defendant absolutely and without any contingency. Hancock v. Colyer, 99 Mass. 187. Meacham v. McCorbitt, 2 Met. 352.
¶2It is entirely certain that, at the time of the service of the process, there was no such absolute liability. The trustee had the right to rebuild instead of paying the money, and was prop erly discharged. Exceptions-overruled.