In Peal v. Martin, ante, 106, 176 S. E., 282, it was said: “A commissioner appointed by a court of equity to sell land is empowered to do one specific act, viz.: to sell the land and distribute the proceeds to the parties entitled thereto. He has no authority and can exercise no powers except such as may be necessary to execute the decree of the court. Immediately upon his appointment he ceases to be an attorney or agent for either party, but becomes in a certain sense an officer of the court for the specific purposes designated in the judgment.” And later, in the same opinion: “A commissioner is not a trustee within the general meaning of that term.” The holding was that an action brought by one of the parties against a commissioner for money had and received was barred by the three-year statute of limitations. It follows, therefore, that the status of a commissioner appointed to sell land is not that of a trustee, generally speaking, nor of an agent, either of the court or of the parties to the suit. Thus, it would seem, in view of the evidence in the case, that the definitions of embezzlement, given by the court to the jury, were hardly sufficient or adequate. C. S., 564. The defendant could not be convicted on the second count as agent or attorney, but only on the first as commissioner. C. S., 4268. This distinction was not pointed out to the twelve. Indeed, the jury was left with the impression that both counts in the bill were valid, and that a conviction might be had on either or both. It appears that, as commissioner, the defendant was seeking to locate some of the heirs at the time he filed his report. He was entitled to have the jury consider this fact in passing upon his conduct as commissioner. S. v. Lancaster, 202 N. C., 204, 162 S. E., 367; S. v. Eubanks, 194 N. C., 319, 139 S. E., 451; S. v. Summers, 141 N. C., 841, 53 S. E., 856.
*645Whether the defendant had embezzled any part of the funds which came into his hands as commissioner, and not as agent or attorney, was the issue arising on the evidence. S. v. Gulledge, 173 N. C., 746, 91 S. E., 362; S. v. Cohoon, 206 N. C., 388, 174 S. E., 91; S. v. McDonald, 133 N. C., 680, 45 S. E., 582. This, and this alone, was the question to be determined by the jury. S. v. Foust, 114 N. C., 842, 19 S. E., 275.
The record also discloses that, over objection, the prosecution was allowed to show the surety on defendant’s bond, as commissioner was now “in the hands of a receiver, being liquidated by the Commissioner of Insurance of the State of New York.” The pertinency of this evidence is not apparent.
New trial.