
    BOBB vs. BOSWORTH.
    Nov. 24.
    One wrongfully dispossessed of his goods, may retake them wherever he can find them.
    The recaption must not be in a riotous or forcible manner.
    A possessor of property may lawfully repel by force, a forcible attempt to divest his possession.
    If A. attempts to retake his goods by force, B. resists the recaption, and in the affray A. wounds B. a civil suit will lie against A. for the battery. In such case it is not material whether A. or B. had the better claim to the property.
    Upon “ not guilty,” with leave to give the special matter in evidence, in trespass, assault and battery, any thing which amounted to a justification might be given in evidence; but circumstances not amounting to a legal justification, could not be thereby permitted to be given in evidence.
    
      
      From the Fayette Circuit Court.
    
   Opinion of the Court, by

Judge Trimble.

THIS was an action of assault and battery, brought by Bosworth against Bobb, in which “not guilty” was pleaded, with leave to give special matter in evidence. A verdict having been found for the plaintiff, a new trial was moved for by the defendant, which was overruled. Whereupon he filed a bill of exceptions, containing the whole evidence given on both sides, and appealed to this court, in which he hath assigned for error, that a new trial ought to have been granted.

This will depend upon the question, in what cases, and in what manner can the right of recaption be lawfully exercised? There is no doubt, but that one having either the general or a special right of property in personal chattels, may, if wrongfully dispossessed thereof, retake them wherever he can find them, provided he can obtain peaceable possession; but the law more highly regards the public peace, than the right of property of a private individual, and therefore forbids recaption to be made in a riotous or forcible manner. The law, however, permits the possessor of property to maintain his possession by force, where force is used in attempting to divest his possession; the law, in that case, permits the party in possession to oppose violence to violence. It is material, whether the violence has been used to regain a possession which had been previously lost, or whether it has been used to maintain a present possession. In the former, it is unlawful; in the latter, lawful.

In the case now before the court, it appears that Bosworth, at the time the assault and battery, was committed, was in possession of the slave, which was the subject of dispute between the parties; that Bobb came, with others, to retake him out of Bosworth’s possession in a violent and forcible manner, which was resisted by Bosworth; and, in the scuffle, Bobb broke the arm Bosworth. It is not material, whether Bobb or Bosworth had the better right to the negro. Bosworth was in actual possession: Bobb could not lawfully use violence and force in regaining possession. Having broken the peace, and used force, where he was forbidden by law to do so, he must be answerable for the consequences.

The leave to give special matter in evidence under the general issue, authorised Bobb to prove any things which, if pleaded, would have made a good justification in law; but the circumstances made out in proof by him, did not amount to a legal justification. We are, therefore, of opinion a new trial was properly refused.

Judgment affirmed, with damages and costs.  