Supreme Court of Vermont, 1846.
18 Vt. 504, 46 Am.Dec. 167.
Facts
Plaintiff buyer acquires property via fraud and Defendant storeowner realizes this just after Plaintiff acquires possession of property. Defendant uses force to get property back from Plaintiff. Plaintiff files claim for assault and battery.
Procedural History
In trial court, jury gives verdict for the Plaintiff buyer/stealer.
Issue
Can you use force in recovery of property?
Arguments for Both Parties
Plaintiff argues that the Defendants’ use of force in trying to get back the stove that the Plaintiff had stolen was unlawful. Claims assault and battery. Claims that his drawing of his knife was self-defense.
Defendant argues that the property being defended by the Plaintiff, under the guise of self-defense, was obtained fraudulently, and was not the right of the plaintiff’s to defend. This makes his self-defense claim moot making his physical resistance an offer to allow the defendants to use force to recover the stolen property.
Holding
The court reverse trial court’s decision, stating that the defendants were given the privilege to use force to obtain the property because the Plaintiff was illegally possessing that property, from the original owner, and that the force used by the defendants was consented to by the actions of the plaintiff.
Rule
Reasonable force can be used in the recovery of property if the force is used when the recovery occurs immediately after the unwanted transfer of possession occurs. The use of force by the one party needs to match up with the use of resistance by the other party.
Spencer M. Durden 