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Law School Case Brief

Hodgeden v. Hubbard - 18 Vt. 504 (1846)


Whoever is guilty of a breach of the peace, or of doing unnecessary violence to the person of another, although it may be in the assertion of an unquestioned and undoubted right, is liable to be prosecuted therefor.


Plaintiff possessor took a stove from defendant owners by means of falsehood and fraud and the owner retook the property. The possessor admitted that the owners had the right to retake the property if the taking could be accomplished without violence or breach of the peace. During the taking, the possessor was assaulted by the owners after the possessor drew his knife against the owners. The possessor sued the owners for trespass for assault and battery and for taking and carrying away a stove. The trial court found in favor of the possessor. The owners appealed.


Was the owner justified in holding the possessor by force?




The Supreme Court of Vermont reversed the judgment of the trial court and held that plaintiff possessor, by drawing his knife, became the aggressor and that the defendant owners was justified in holding the possessor by force. The owners had a right to retake the property, which had been fraudulently obtained from them, if it could be done without unnecessary violence to the person, or without breach of the peace. The Court held that the charge was erroneous when it told the jury that the owners would be liable although they used no more force than was necessary to accomplish the retaking under the possessor's resistance. The Court further held that the possessor's resistance was unlawful under the facts and that the possessor did not have a claim because he did not acquire any right against the owners to property or possession.

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