## Facts

- Kirby worked as bookkeeper for the Providence Warehouse Company; Foster was the company’s agent/manager, and Foster’s son was also an employee.
- The company claimed $50 was missing and deducted $50 from Kirby’s wages; Kirby denied liability.
- After consulting counsel, Kirby was advised he could set off the claimed wage debt by retaining company money when next entrusted with it.
- On January 20, 1888, Foster voluntarily gave Kirby company funds to pay employees.
- Kirby openly retained an amount he believed was owed to him (including the disputed $50) and returned the remainder to Foster, explaining what he had done.
- Foster and his son seized Kirby and attempted to retake the money by force; a struggle occurred, and Kirby alleged personal injuries.
- Kirby sued Foster and his son for assault and battery and related damages arising from the forcible attempt to reclaim the money.

## Issues

1. Whether an owner’s agent is legally justified in using force to recapture money from a person who obtained possession by voluntary entrustment and retains it under an honest, though possibly mistaken, claim of right.
2. Whether the common-law privilege of recapture applies absent a “purely wrongful” taking or conversion (such as theft, fraud, or stealth) without any bona fide claim of right.

## Decision

- The Supreme Court of Rhode Island denied the defendants’ request for a new trial and affirmed the verdict for Kirby.
- The court held the defendants were not justified in using force or personal violence to retake the money.
- Because Kirby’s possession arose from voluntary entrustment and was maintained under an honest claim of right, the defendants’ self-help recapture defense failed.
- The defendants’ proper course was to pursue legal remedies to recover the money rather than forcibly reclaim it.

## Legal Principles

- The privilege of recapture of chattels by force is narrowly limited and generally requires a “purely wrongful” taking or conversion without a claim of right.
- When property is voluntarily entrusted to another, and the possessor later asserts an honest (even erroneous) claim of right, the owner has no privilege to retake it by force.
- Public order and peace outweigh private self-help in resolving competing claims to property; parties must use judicial remedies (e.g., replevin or trover) rather than violence.
- An honest claim of right may negate the character of the conduct as a larceny-type taking for purposes of invoking a forceful recapture privilege.

## Conclusion

The court affirmed liability for assault where an owner’s agent used force to retake money from an employee who had been entrusted with the funds and openly retained part under a bona fide claim of wages; even if the employee’s claim was mistaken, the owner’s remedy was through legal process, not violence.


Kirby v. Foster, 17 R.I. 437, 22 A. 1111 (R.I. 1891)