Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
To obtain possession of the property in question no violence to the person of the
plaintiff was necessary, or required, unless from his resistance. It was not like
property carried about the person, as a watch, or money, nor did it require a number
of people to effect the object. The plaintiff had no lawful possession, nor any right
to resist the attempt of the defendants to regain the property, of which he had
unlawfully and fraudulently obtained the possession.
18 Vt. at 507-08. Critical to the shopkeeper’s privilege is the requirement that the privilege be
exercised (as the Gortarez court opinion indicated) “on the spot” or while in “fresh pursuit” of the
purported shoplifters. What is the function of the “fresh pursuit” rule?
2. Claims of right. In Kirby v. Foster, 22 A. 1111 (R.I. 1891), Foster gave his bookkeeper,
Kirby, a sum of money to be used as wages for other employees. The plaintiff, acting under the
advice of counsel, took from this money the amount due him at the time, and an additional $50
that Kirby believed to have been wrongly deducted from his pay by Foster on a previous occasion.
Kirby put this sum into his pocket, and returned the balance to Foster, saying he had received his
pay and was going to leave, and that he did this under advice of counsel. The defendants—Foster
and his son—then seized the plaintiff, and attempted to take the money from him. A struggle
ensued, in which the plaintiff claims to have received injury, which led to his suit. In his opinion,
Judge Stiness rejected the defense that Foster was engaged in a privileged recapture of his money:
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 is not bound to stand by and
submit to wrongful dispossession or larceny when he can stop it, and he is 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 intrusted 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.
22 A. at 1112. Why does Kirby’s claim of right in the money transform the legal situation from
that of ordinary recapture of chattels?
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