This case is governed by the case of Mason v. Lothrop, 7 Gray, 354.
1. The authority to seize liquors without a warrant, though sometimes necessary, is a high power; and, being in derogation of common law right, it is to be exercised only where it is clearly authorized by the statute or rule of law which warrants it.
In the St. of 1855, § 13, the officers there named are authorized to arrest the person without warrant, and seize the liquor without warrant, in terms, only where the liquor is kept or transported for sale contrary to law. By a later clause in the same act it is made the duty of the several officers enumerated to enforce the penalties provided for in case of violation of the act, of which they can obtain reasonable proof.
The latter clause modifies the former, which, if taken by itself, would in effect be a justification for the officer in cases only where the party is guilty of the offence, holding the officer to justify his act only on the same condition. But, taking the clause as modified, it extends the authority to cases where the officer has or can obtain reasonable proof.
But such proof must be that kind of proof which the subject admits of. The transporting may be easily proved ; but that is not sufficient. It must be transporting with the guilty and unlawful intent contemplated by the statute. But such intent, being in the breast of the party to whom it is imputed, can ordinarily be proved only by external circumstances. If these are such as to satisfy a jury that the defendant had the guilty intent, such is reasonable proof to the officer, and is a justification within the statute. But this is something beyond mere probable cause to believe, or suspicion, and therefore it is not enough that there has been a conviction to that effect before the magistrate. The charge, therefore, that if the defendants had “reasonable cause to suspect,” &c., was not equivalent to an instruction that if they had any reasonable proof, and was not correct in law. They should have been instructed that, if the *203defendants had any reasonable proof, &e., it was a justification.
2. It is sufficient that the defendants seasonably procured a warrant against the person, without proving affirmatively that they also proceeded against the liquors. If the action had been for seizing the liquor, they must have shown due proceedings in justification. But this is for arresting the person only; and whether they proceeded against the liquor (which they may have done for aught that appears) is immaterial. Mason v. Lothrop, 7 Gray, 354.
3. If the act was lawful, the motive with which it was done is immaterial, and express malice is not provable.
Exceptions sustained.