One defense against torts is the recovery of property.

Hodgeden v. Hubbard

Supreme Court of Vermont, 1846. 18 Vt. 504, 46 Am. Dec. 167.

Parties are not named but the plaintiff won in the trial court and the defendant appealed.


To what extent can one use force to recover property?


No violence is to be used unless if there was resistance.


Here, the plaintiff became the aggressor, so the force was reasonable. Reversed.


The defendants in this case sold a stove to the plaintiff. Immediately, they discovered the purchase had been made by fraud and set out to intercept him. The attempted to reclaim the item and the plaintiff pulled out a knife. The defendants teamed up to hold him down and reclaim the property.

Trial court initially said that if any force was used, then the jury should find in favor of the plaintiff. The jury did so.


This object came into the possession of the plaintiff through fraud. Therefore, he had unlawful possession of the item and the defendants had a right to recover as long as there was no unnecessary violence or a breach of peace. When the plaintiff pulled out a knife, he became the aggressor, and force was necessary to reclaim the property. If the defendants exceeded the necessary force, they would be held liable. Otherwise, they were fine.


First, the timing of the defendants matter. They realized almost immediately that the item had been stolen and set out at once. Had they waited, they would have needed to rely on the law to provide a redress.

Second, force is fine as long is it is reasonable and maintains peace. Reasonable force can vary based on the situation.

Additional Notes

We focus on the fresh pursuit issue. There are times when we say that we can “self-help”. That is, if the pursuit is fresh, then there is a defense. However, if there is a breach of peace, the privilege is gone.

Bonkowski v. Arlan’s Department Store

Court of Appeals of Michigan, 1968. 12 Mich. App. 88, 162 N.W.2d 347.

Bonkowski is the plaintiff and Arlan’s department store is the defendant. The defendant lost in the lower court and appealed.


Is there a privilege to detain a patron who is suspected of stealing property?


Privilege exists if defendant:

  1. Reasonably believed the plaintiff had unlawfully taken any goods held for sale at the department store
  2. Reasonable investigation of the plaintiff


The plaintiff properly created the claim for false arrest. However, the defendant also has the privilege of recovering property.


Plaintiff made several purchases at the store where she was stopped by “private policeman” who was told that she had stolen some items. He asked her to come back, she did, and he asked to examine her purse (where the items were alleged to be). Seeing nothing there, he let her go. She filed claims for false arrest and slander saying that her damages were several headaches, nervousness, and depression.

Jury found in her favor.


There is a justification for this privilege to exist. Here are the reasons:

  1. Protect the shopkeeper from either letting a person go free or risk a false imprisonment charge
  2. Combat shoplifting

Thus, there is a privilege, but it must be exercised reasonably. There are several instances when it can be deemed unreasonable. Here, the court is incorporating this new rule, so the case must be remanded for a new trial.

Here, the court also extends this to the immediate vicinity so that the shopkeeper may have time to find enough facts to form a reasonable basis for detainment.

Additional Notes

A person can still be stopped even if the product has not been purchased yet. If there is a reasonable assumption that theft is occurring, the merchant can still stop the individual. The key is to see if the material was concealed.


Privilege exists when the detention is reasonable.

Additional Notes

Here, there was a third party complaint. The plaintiff sued the department store, who said that it was because of the security officer. So, the plaintiff here needs to also add the officer and the agency as a defendant.

There are three motions one can make if they lose a trial before a judgement is delivered (after a jury verdict)

  • Directed judgement notwithstanding the verdict (this shouldn’t have gone to the jury).
  • Remittitur (the damages was excessive)
  • New trial (Some procedure was wrong)

Here, the shopkeeper can make a reasonable mistake as long as the search is reasonable.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Torts

Will Laursen

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