Hodgeden v. Hubbard

The opinion of the court was delivered by Williams, Ch. J. It is admitted, in this case, that the property in the stove did not pass to the plaintiff, that, though the plaintiff obtained possession of the stove, yet it was by such means of falsehood and fraud, criminal in the eye of the law, as made the possession unlawful, and that, although the consent of the owner was apparently obtained to the delivery of the possession to the plaintiff, yet, as it respects the plaintiff, and so far as the right of property was concerned, no such consent was given. In the cases of Buffington v. Gerrish, 15 Mass. 156, and Badger v. Phinney, Ib. 359, it was decided, that, under similar circumstances, as between the owner and the person thus obtaining property, or between the owner and the existing creditors of such person, no, property passed out of the real owner, and he might reclaim it, as against such person, or his creditors. In the present case the defendants had clearly a right to retake the property, thus fraudulently obtained from them, if it could be done without unnecessary violence to the person, or without breach of the peace. It is admitted by the counsel for the plaintiff, that a right to re-capture existed in the defendants, if it could be done without violence, or breach of the peace. And how far this qualification of the right to retake property, thus taken, was intended for the security, or benefit, of the fraudulent possessor may admit of some doubt. 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. But the fraudulent possessor is not the protector of the public interest. In the case before us it is stated, that it did not appear “ how much force was used, or its character,” before the defendants were assaulted by the plaintiff. To obtain possession of the property in [508] 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, rior any right to resist the attempt of the defendants to regain the property, of which he had unlawfully and fraudulently obtained the possession. By drawing his knife he became the aggressor, inasmuch as he had no right thus to protect his fraudulent attempt to acquire the stove, and the possession of the same, and it was the right of the defendants to hold him by force, and, if they made use of no unnecessary violence, they were justified ; if they were guilty of more, they were liable. Under the view of the evidence, as considered and claimed by the defendants, they were entitled to the charge requested. The refusal of the court so to charge was erroneous ; and although the court stated to the jury correctly, that the defendants could not justify retaking the property by blows inflicted on the person of the plaintiff, yet this was not meeting the request; and the charge was evidently erroneous, when the jury were told, that the defendants would be liable, although they used no more force than was necessary to accomplish the object of retaking the property, under the resistance of the plaintiff. The resistance of the plaintiff was unlawful, in regard to the particular species of property, which was then the subject of controversy, under the facts claimed by the defendants, and which must have been found to the satisfaction of the jury, as would seem from their verdict. On the second count in the declaration the plaintiff could have no claim whatever. The defendants were the agents of the true owner; the plaintiff was the wrong doer, and acquired no right, against the defendants, to either property, or possession, if the facts were as stated in the case. The judgment of the county court is reversed.