In the case of Commonwealth v. Stearns, 2 Met. 343, cited by the defendant’s counsel, it was decided, that an auctioneer who receives money on the sale of his employer’s goods, and converts it to his own use, is not such an agent or servant as is intended by the Rev. Sts. c. 126, § 29. That case is decisive of the present.
A distinction was suggested by the attorney for the Commonwealth, between the two cases, namely, that an auctioneer is an agent for many persons, and must, of necessity, have the authority to intermingle the moneys received from various sales.
The present case, as stated in the report, sets forth only the agency of the defendant as a collector of bills for a single newspaper establishment; but practically we know very well this class of agents are employed in a collecting tour, by many different offices. We do not, however, think that the liability of the party to the penalties for an act of embezzlement depend so much upon that circumstance as upon the nature of the agency, and more especially upon the right of property in the specific article alleged to have been embezzled.
In the case of a domestic servant, and, to some extent, in *66the case of a special agency, the right of property and the possession continue in the principal, and a disposal of the property would be a violation of the trust, and an act of embezzlement. But cases of commission merchants, auctioneers, and attorneys authorized to collect demands, stand upon a different footing; and a failure to pay over the balance due to their employers, upon their collections, will not, under the ordinary circumstances attending such agency, subject them to the heavy penalties consequent upon a conviction of the crime of embezzlement.
New trial ordered.