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Unquestionably, if one takes another's property from his possession without right and against his will, the owner or person in charge may protect his possession, or retake the property, by the use of necessary force. He was not bound to stand by and submit to wrongful dispossession or larceny when he can stop it, and he was not guilty of assault in thus defending his right, by using force to prevent his property from being carried away. But this right of defense and recapture involves two things: first, possession by the owner, and, second, a purely wrongful taking or conversion, without a claim of right. If one has entrusted his property to another, who afterwards, honestly though erroneously, claims it as his own, the owner has no right to retake it by personal force. If he has, the actions of replevin and trover in many cases are of little use. The law does not permit parties to take the settlement of conflicting claims into their own hands. It gives the right of defense, but not of redress. The circumstances may be exasperating; the remedy at law may seem to be inadequate; but still the injured party cannot be arbiter of his own claim. Public order and the public peace are of greater consequence than a private right or an occasional hardship. Inadequacy of remedy is of frequent occurrence, but it cannot find its complement in personal violence.
Plaintiff George J. Kirby was in the employ of the Providence Warehouse Co. of which the defendant, Samuel J. Foster, was the agent, and his son, the other defendant, an employee. A sum of fifty dollars belonging to the company had been lost, for which the plaintiff, a bookkeeper, was held responsible, this amount was deducted from his pay. In January 1888, defendant handed the plaintiff some money to pay the help. Plaintiff, acting under the advice of counsel, took from this money the amount due him at the time, including what had been deducted from his pay, put it into his pocket, and returned the balance to defendant, saying he had received his pay and was going to leave, and that he did this under advice of counsel. The defendants then seized the plaintiff and attempted to take the money from him. A struggle ensued, in which the plaintiff claimed to have received injury, thus, this suit was brought. The jury returned a verdict for the plaintiff. The defendants then filed petition for a new trial on exceptions to the rulings and refusals to rule of the presiding justice.
Were the defendants justified in the use of force upon the plaintiff to retake the money from him?
In this case, the court found that the plaintiff stated what he had done, and the grounds upon which he claimed the right to do it, handing back the balance above what was due him. The sincerity of the plaintiff's belief that he had a right to retain the money was unquestionable. Hence, as stated in a case cited by the defendants, even a forcible taking of property, if done under an honest claim of right, however ill founded, would not constitute the crime of robbery or larceny because, where a party sincerely, though erroneously, believes that he was legally justified in taking property, he was not guilty of the felonious intent which was an essential ingredient of these crimes. In the most favorable view of the case for the defendants, the plaintiff having obtained the money by no crime, misrepresentation, or violence, nor against the will of its owner, retained it wrongfully. In such cases, the rule was clearly stated that the general rule was that a right of property merely, not joined with the possession, will not justify the owner in committing an assault and battery upon the person in possession, for the purpose of regaining possession, although the possession was wrongfully withheld. However, in this case it was said that the plaintiff was about to carry away the money against the will of the owner. Undoubtedly this was so, but this was true in every case of wrongful conversion of property. If it be not taken against the will of the owner, it cannot be retaken by force, but only by the usual civil remedy.