Morris, Justice. October 24th, 1851, Thomas Rigney, at the city of New York, consigned to Dunscomb, Cook & Co., of the city of New York, with invoice and bills of lading, 42 barrels pearl and 63 barrels pot ashes, amounting to $2833,60. This consignment was . made upon the following conditions: Dunscomb & Co. were to advance to Rigney in cash to the amount of the costs of the ashes. Dunscomb & Co. were to consign the ashes to responsible parties in Glasgow for sale and returns.

Dunscomb & Co. guarantieing the faithful disposition of the property and returns of accounts of sales, together with whatever balance the ashes may bring over and above the advances made; he, Rigney, holding himself liable to Dunscomb, Cook & Co. for any deficiency.

October 25th, 1841, Rigney received from Dunscomb, Cook & Co. i$2914-85 for the invoice of ashes, &c., so consigned by him to Dunscomb, Cook & Co October 25th, 1851, Dunscomb, Cook & Co. consigned the bills of lading and invoices of the said ashes amounting to £708-8, to Duar & Angus, of Glasgow and shipped the ashes to them, to sell to the best advantage, according to the instructions of Rigney to Dunscomb, Cook & Co., which instructions they inclosed to.Duar & Angus, Dunscomb, Cook & Co. insured the ashes Novoember 11th, 1851, Dunscomb, Cook & Co. made their draft upon Duar & Angus for £596'4'5, to their own order, advanced against the ashes.

This draft is received and paid. May 21st, 1852, Duar & Angus remit to Dunscomb, Cook & Co., account of sales of the ashes, showing a deficiency,£492'18-3, a balance against Dunscomb, Cook & Co. in favor of Duar & Angus, and which Duar & Angus charge to claim from Duns-comb, Cook & Co. For this deficiency, Dunscomb, Cook & Co., upon their guaranty, are liable to Duar & Angus, and for the same deficiency Thomas Rigney is liable to Dunscomb, Cook & Co. upon his, Rigney’s express promise. Rigney pays to Dunscomb, Cook & Co. $525'09, on account of the said deficiency.

This sum has not been paid over by Dunscomb, Cook & Co. to Duar & Angus, and to recover which the warrant of arrest in this cause was issued and the defendants held to bail.. These facts do not establish that Dunscomb, Cook & Co. were acting in a fiduciary capacity,' and therefore the defendants, Cook & Johnson, must be discharged from arrest and the warrant of arrest must be vacated. Order accordingly, with $10 costs óf motion to the defendant.