The action is case for a malicious prosecution, charging the plaintiff with keeping spirituous and intoxicating liquors for sale in the storehouse of the steamer Boston, in the city of Bangor, in violation of the provisions of the Act approved on June 2, 1851, c. 211, § 11. Those previsions required, that the complainants should state on oath, "that they have good reason to believe and do believe, that spirituous and intoxicating liquors are kept or deposited and intended for sale by any person not authorized to sell the same in said city or town, under the provisions of this Act.” The defendants appear to have made a positive charge upon oath, that the plaintiff kept such liquors intended for sale. Before making such an absolute charge, they should at least have been careful to ascertain, that there was reason to believe it to be true..
By the record of the Police Court it appeared, that the prosecution, so far as it respected the plaintiff, had been finally determined by an acquittal. From the bill of exceptions it appears, that there was an entire absence of testimony to prove that he had ever kept such liquors intended for sale, or that the complainants had been informed, that he had, or that-they had been informed or had knowledge of any fact inducing the belief, that he had. Upon such testimony it became the duty of the Court to instruct the jury, that there was not probable cause for the prosecution. It coúld only be inferred from testimony proving that they sought for and acted under the advice of counsel. And whether they did in that respect, as well as in others, so conduct as to exhibit probable cause, was a question of law to be decided by the Court when there was no contradictory testimony, and no dispute about the facts presented by the testimony. There does not appear to have been any in this case respecting what occurred between the Complainants and the Judge of the Police Court, who was the only counsel consulted.
Forbearing to make any comments upon the propriety or right of a magistrate, upon being first consulted, to express an opinion as counsel upon the effect of statements, which *535if proved, might constitute a part or the whole of-the testimony, on which he might very soon be required to decide upon the guilt or innocence of a person accused of crime, it will be necessary only to ascertain whether there was any testimony in the case, which authorized the Court to submit it to the jury, that probable cause might be inferred from it on account of legal advice sought and given.
The officer states in substance, that he informed the complainants, that there was such liquor in the storehouse. He does not state, that he informed them, that those liquors were intended for sale or that liquor had been sold there, or that he informed them of any facts inducing them to believe it. On the contrary he testified, that he never supposed that the plaintiff sold or intended to sell liquors, thus showing that the complainants could not have received any information from him authorizing the complaint.
The police magistrate testified in substance, that one of the complainants, a day or two before the warrant was issued, urged the necessity of one to search the storehouse for liquors, stating, that he was satisfied that the Irish got their supplies of liquors from the boat or storehouse; that he suggested some difficulties, and stated that he wanted the names of the owners; that nothing was said about any liquors being bought or sold at the storehouse ; the idea was only, that the steamer brought liquors on freight. When the complainants were all present, on the day when it was made, he testified, that he suggested, that if the keeper’s name could be obtained, that would be sufficient, and suggested to them to get the name of the agent of the boat. It is not perceived, that there was any other testimony that could tend to prove, that the defendants consulted counsel and acted upon his advice. No person appears to have asked for, or to have expressed any opinion, whether their information, if it could be proved to be correct, would authorize them to make the complaint.
In the case of Stevens v. Fossett, 27 Maine, 266, this Court expressed the opinion, “ that if a person with an honest wish to ascertain, whether certain facts will authorize a suit on *536a criminal prosecution, lays all such facts before one learned in the law, and solicits his deliberate opinion thereon, and the advice is favorable to the prosecution, which is thereupon commenced, it will certainly go far, in the absence of other facts, to show probable cause and to negative malice.”
It would have been entirely correct to consider all the testimony introduced in defence as true, for there was no contradictory testimony or other cause to occasion doubt.
Whether it proved probable cause, according to the rule stated above, was a question of law to be determined by the Court. It was submitted to the jury, thereby affording them an opportunity to find, that there was probable cause from a state of undisputed facts, which the law pronounces to be insufficient to prove it. Exceptions sustained, verdict set aside and new trial granted.
Tenney, Rice and Hathaway, J. J., concurred.