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Kirby v. Foster

Citation. Kirby v. Foster, 17 R.I. 437, 22 A. 1111
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Brief Fact Summary.

Foster (Defendant) used force to retake money from Kirby (Plaintiff). Plaintiff peacefully took money entrusted to him because he honestly believed that the money was due to him.

Synopsis of Rule of Law.

The right of recapture of chattels involves two things: first, possession by the owner, and, second, a purely wrongful taking or conversion, without a claim of right.


Plaintiff worked as a bookkeeper for Providence Warehouse Co. (Corporation), of which Defendant was the agent. The Corporation lost fifty dollars. Plaintiff was held responsible and fifty dollars was deducted from Plaintiff’s pay. Defendant handed Plaintiff some money to pay the employees. Plaintiff took from this money an amount due to him, including the fifty dollars, and returned the balance to Defendant. Defendant and his son grabbed Plaintiff in an attempt to retake the money. A struggle ensued and Plaintiff was injured for which suit was brought. The jury returned a verdict in favor of Plaintiff. Defendant appealed.


Were Defendants justified in the use of force upon Plaintiff to retake money from him?


No. Judgment for Plaintiff.
* If one takes another’s property for 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. Defendants argue that Plaintiff’s conversion of the money to his own personal use was a wrongful conversion amounting to embezzlement, which justified Defendants’ use of force.
* The right of 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 force. Under the facts in the case, Defendants’ proper remedy would be to bring actions of replevin and trover.
* The law does not permit parties to take the settlement of conflicting claims into their own hands. Even if the remedy at law may seem to be inadequate, the injured party cannot be the arbitrator of his own claim. Public order and peace are of greater consequence than a private right or an occasional hardship.
* Defendants’ right to recapture chattels is limited to the defense of his personal possession against a mere wrongdoer. In this case, Plaintiff stated what he had done and handed the balance back. The court did not agree with Defendants’ position that the conversion amounted to embezzlement, which justified the use of force.
* Defendants object to the court’s ruling in this case because it would prevent the recapture of property obtained by trickery or fraud. However, there was no evidence that the money was procured by misrepresentation, trickery or fraud.


The self-help remedy of recapture of chattels is allowed when one person wrongfully obtained the possession by either force or fraud, or without claim of right. Any privilege of recapture must be exercised promptly (the hot pursuit requirement) or else the privilege will be lost.

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