Lipowicz v. Jervis

Mb. Chief Justice Mitchell

dissenting:

The learned referee has found that the defendant had probable cause for the prosecution of plaintiff but he has also found facts which show beyond question that while the plaintiff was technically guilty of violation of the ordinance, yet it was only a technical guilt caused by the action of the prosecutor himself (or his wife with his knowledge and assent) in pocketing the license and thereby preventing- the plaintiff from displaying it. The probable cause therefore behind which the defendant now seeks to shelter himself was not an honest probable cause used in good faith, but part of a fraudulent scheme to force payment of the cost of the license. The circumstances leading up to and including the settlement show that the defendant’s action was an abuse of criminal process to collect a civil debt, a fraud which vitiated every part of his action. I would reverse this judgment and send the case to a jury-