Opinion by
The part of the charge covered by the first assignment of error is open to the objection that it submitted to the jury a question not involved in the issue and made the liability of the defendant depend upon the guilt or innocence of the plain*373tiff. The plaintiff had been arrested and prosecuted at the instance of the defendant on the charge of embezzlement as agent or bailee of sewing machines and supplies, consigned to him for sale or lease. In submitting the case it was said: “Now, the question arising is — did Air. Radcliffe embezzle or fraudulently appropriate any of those items that have been enumerated to his own use?” Following a review.of the testimony this question was repeated in substantially the same words. The real issue, whether the prosecution was brought in good faith and on probable cause, was very clearly stated in other parts of the charge, and the instruction was given that probable cause does not depend on what may appear at the trial but upon the knowledge and reasonable belief of the prosecutor when the prosecution was begun. The error complained of did not result from a misunderstanding by the learned judge of the law governing the action. It was inadvertently made in presenting to the jury the contentions of the parties, that of the plaintiff being that there was an honest dispute whether there was anything due by him on a settlement of his accounts, and that of the defendant that there had been an actual embezzlement. It is evident from the whole charge that it was the intention of the court to submit to the jury only the question whether at the time of the examination of the plaintiff’s accounts, before the prosecution was begun, there were reasonable grounds to suppose that he was guilty of embezzlement. But notwithstanding the clear and correct statements of the law in other parts of the charge, the jury may have been led to believe that the crucial test of the plaintiff’s right to recover was his guilt or innocence. We are therefore constrained to reverse the judgment.
The remaining assignments of error are without merit. The advice of counsel operates as a defense only when sought in good faith and founded on a complete and accurate statement of all the facts within the knowledge of the prosecutor. Whether the defendant had sought the advice of the district attorney and made to him a full disclosure of all the facts within his knowledge, or had applied to him for assistance in bringing a prosecution already determined upon were matters of dispute and were properly submitted to the jury.
The judgment is reversed with a venire facias de novo.