Hodgeden v. Hubbard

Supreme Court of Vermont, 1846.

18 Vt. 504, 46 Am.Dec. 167.

Prosser, pp. 111-112


Facts: The plaintiff bought a stove on credit and started taking it away.  The defendants found out that the plaintiff had bad credit and went to take back the stove.  They took it back by force and, in the course of doing so, the plaintiff pulled a knife on them.  The plaintiff sued for assault and battery and conversion of the stove.  The trial court found for the plaintiff for $1.  The defendants appealed.


Issue: Do property owners have the privilege of taking back their property by force when it is taken from them fraudulently?


Rule: Property owners have the right to recover chattel if it can be done “without unnecessary violence to the person, or without breach of the peace”.  Furthermore, “there is no privilege on the part of the wrongdoer to resist”.[1]


Analysis: The court focuses on the fact that the plaintiff drew a knife, at which point he became the aggressor.  The plaintiff should not have resisted the defendants’ repossessing of the ill-gotten goods.  If the plaintiff hadn’t resisted, there would have been no force necessary to recapture the chattel.  Therefore, the defendants’ contact was privileged.


Conclusion: The judgment of the trial court is reversed.


Notes and Questions


1.     Watson v. Rheinderknecht can be distinguished in that the plaintiff had already taken “peaceable possession” of the chattel in controversy (some sheep) when the defendant forcibly tried to take it from him and injured him.  The defendant should have used the courts to try to get the sheep back.

2.     According to the Restatement § 103, what constitutes the “timely” use of force to retake a chattel is all relative.

3.     The law values the integrity of the person over the possession of property, although not as much as you might expect.  You can’t use force with the intent or likelihood to cause death or serious bodily harm.  You also have to ask for the chattel back before you start using force, unless you reasonably believe that the request to get the thing back will be useless.

4.     There aren’t many cases that deal with this, but there is loss due to a reasonable mistake, the person who makes the mistake must absorb the loss.

5.     If you’re a creditor and your debtor defaults on their payments but refuses to give up the chattel in question, you must resort to your legal remedy and you must not take away the chattel by force.  However, what is meant by force has been a subject of disagreement.

6.     It is a matter of disagreement whether or not a clause in a contract entitling a seller to use force to recover property in case of default is effective.  I dunno if the problem is “one of the scope of the privilege of recapture or whether consent should be invalidated”.

7.     So this is no longer a common law issue, it’s statutory.


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[1] Prosser and Keeton on Torts, §22 at 138 (1984).