consequent upon the act of taking, and the law arising upon it is the same. Generally the only points to be determined in such case are, whether the pursuer has an undoubted right of property, and of immediate possession, and whether the individual removing it is a mere wrongdoer. In such case a recapture of the property is permitted by the individual, when made only with the reasonable exercise of power which the occasion demands, and when limited and controlled by the urgency of the necessity compelling to this course. Most cases of this kind arise where there is a felonious intent; and, when such is the cause of the taking, the urgency of a recapture is vastly greater than where the taking arises from a mere conflicting claim to title in the property. In the former case a greater degree of force may with propriety be resorted to than in the latter. Indeed, a resort to any unusual degree of violence, where there is no felonious intent, or where the violence is disproportioned to the value of the property, or where there are other remedies equally effective for the individual, should hardly be encouraged, and will always admit of more or less doubt whether it can be sustained in law. In the case before us, the true title of the property, as we hold, was in the individual under whom the respondent claimed as tenant. At the same time, there is no doubt the complainant supposed the property belonged to her, and that she might lawfully remove it. . . . We deem it our duty to be especially cautious in permitting an injured party to take his redress into his own hands. It is most usually a dangerous experiment, for him and for the peace of community, so to do. Circumstances at times render this power necessary. In the present case the respondent went as far as was advisable, or perhaps justifiable to go; but as it does not appear that he transcended his rightful exercise of power, we regard his justification as sufficient, and that he cannot under such circumstances be held guilty of an assault and battery. Verdict set aside and nolle pros. entered. SUB-TOPIC B. BY IMPRISONMENT 580. PARK v. TAYLOR UNITED STATES CIRCUIT COURT OF APPEALS. 1902 118 Fed. 34 IN ERROR to the Circuit Court of the United States for the Northern District of Mississippi. The action was brought by Joseph W. Park, a citizen of Alabama, against J. W. Taylor, a citizen of Mississippi, for $50,000 damages. Plaintiff alleged that the defendant, with force and arms, assaulted him and arrested and restrained him of his liberty without any lawful authority and without probable cause. The defendant pleaded not guilty. The bill of exceptions shows "that evidence having been given on the part of the plaintiff tending to prove that the arrest of the plaintiff complained of by the defendant, without warrant, evidence was given by the defendant tending to prove that in his lifetime one R. S. Park took out certain policies of insurance upon his own life, payable to his administrator, the aggregate amount of which policies was $10,000; that said policies were issued through an insurance agency of the defendant; that said policies were several in number; that when the policies were received the said R. S. Park refused to accept more than $5,000 of such insurance, and it was then agreed that the other $5,000 of insurance should be transferred to the defendant, by whom the premium thereon had been paid by defendant, that defendant thereupon wrote on to the insurance company to get forms for transferring said insurance, but before the forms for such transfers were received the said R. S. Park died; that it was therefore agreed that the plaintiff herein should be appointed administrator of R. S. Park, should collect all of said policies, and should pay to the said defendant the sum of $2500, as his (defendant's) interest in said insurance; that the defendant agreed to become surety on the administration bond of the plaintiff, upon the agreement of the plaintiff to deposit in the bank of the defendant all moneys belonging to said estate, including the amount collected on these insurance policies, which were only to be drawn out upon orders approved by J. M. Boone, an attorney agreed on; that defendant became such surety upon such agreement; that thereupon proof of death was made by the defendant for the plaintiff, and sent into the company, which sent its check to the defendant for $10,000, being the amount of all of said policies payable to the order of plaintiff as administrator; that defendant called plaintiff into his bank to sign receipts for said check and to indorse the same to the defendant, so that the same might be deposited in defendant's bank to the credit of said estate; that the plaintiff signed the receipts, but the same were not dated nor witnessed, and that the plaintiff thereupon, without the consent of the defendant, took said check, refused to indorse the same, and ran out of the bank, and disguised himself, and sought to leave the vicinity for the purpose of taking said check to Memphis, in the State of Tennessee; that the purpose was to prevent the proceeds of said check being received by the defendant in his bank, and the evidence tended to show that the defendant, for the purpose of securing possession of said check, caused the arrest of the plaintiff." Upon this evidence the Court charged the jury that, "if they believed the facts said evidence tended to prove, then the defendant had probable and reasonable cause to cause the arrest of said plaintiff, and an arrest without warrant, under such circumstances, would be legal if it was made for the purpose only of securing said check." The jury being so instructed, returned a verdict for the plaintiff, and assessed the damages at $1. The plain tiff brings the case to this court, and assigns as error that the Court erred in the charge given. Tim E. Cooper, for plaintiff in error. J. M. Boone, for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. SHELBY, Circuit Judge, after stating the case as above, delivered the opinion of the Court. The defendant caused the arrest of the plaintiff without warrant. This was the foundation of plaintiff's suit, which was for assault and battery and false imprisonment. Arrests without warrant are sometimes lawful. Circumstances may exist which of themselves are a command of arrest as imperative as the command of official authority. Such right of arrest without warrant rests upon the inherent right of society to protect itself against sudden assaults in emergencies by the spontaneous action of its members. The right is limited to cases where the person arrested has committed, or is about to commit, a criminal offence. It does not appear from record that the plaintiff had committed any criminal offence or that he was about to commit one. The evidence tended to show that, in violation of an agreement made by him, he was endeavoring to prevent the proceeds of the check being received by the defendant at his bank. If it be conceded that the defendant was entitled to the possession of the check (although it was made payable to the plaintiff) the defendant had no right to secure its possession by force and violence. He should pursue his legal or equitable. remedies, and not take the law into his own hands. The Circuit Court erred in the charge given. The judgment of the Circuit Court is reversed, and the case remanded for a new trial. SUB-TOPIC C. BY TRESPASS TO REALTY 581. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, pp. 506, 514.) "Trespass " (E, a). 4. If certain persons unknown, in a felonious manner, come into my garden, and eradicate and pull up certain apple and pear trees, and carry them away into the house of F. S., yet I cannot justify my entry into the said house to take the said trees, inasmuch as the stealing those trees, being annexed to the franktenement, was not felony, but a trespass; and so the case is no other but that if the trees had been taken by a trespasser and put into the said house; then it had not been lawful for me to take them without being a trespasser by my entry. Mich. 16 Ja. [1619] B. R. between Higgins and Andrews (adjudged upon a demurrer). 5. But otherwise it had been, if the stealing of the thing had been felony, and I had upon fresh suit taken it in his house, this had been justifiable in a trespass against me. Mich. 16 Ja. B. R. in the said case of Higgins and Andrews, per Curiam agreed. 582. CHAMBERS v. BEDELL SUPREME COURT OF PENNSYLVANIA. 1841 2 W. & S. 225 ERROR to the District Court of Allegheny county. Andrew Bedell against William Chambers and others. This was an action of trespass quare clausum fregit, in which the defendant pleaded not guilty. The parties were owners of adjoining tracts of land, and disputed about their partition line. The plaintiff cut a quantity of rails upon the land in dispute, and hauled them to another part of his land, which was not in dispute. The defendant went there in the night and hauled the rails away, for which this action of trespass was brought. It appeared clearly on the trial that the land where the rails were cut belonged to the plaintiff. The Court below, in answer to a point put by the defendants, instructed the jury, that whether the land belonged to the plaintiff or not, he was at least entitled to recover nominal damages; but that the evidence clearly and conclusively established the plaintiff's title, and he was therefore entitled to recover the value of the property taken in damages. M'Candless, for plaintiff in error, contended that the Court erred in their instruction that the defendant was a trespasser in entering upon the land of the plaintiff to retake his own property, wrongfully put there by the plaintiff, and cited 2 Chitty's Blackstone 5; Hale's Common Law 96; 1 Dane's Dig. 135; Cro. Eliz. 246. Van Amringe, contra, on the same point, argued that the defendant could only take advantage of his defence by pleading it specially. PER CURIAM. It is certain, that if the chattel of one man be put upon the land of another by the fault of the owner of the chattel, and not by the fault or with the connivance of the owner of the land, the owner of the chattel cannot enter to retake it; but that if it be put there without the fault or consent of either party, the owner of the chattel may enter and take it peaceably, after demand and refusal of permission, repairing, however, any damage which may be occasioned by his entry. So, also, where the parties are in equal default, for instance, by omitting to repair a partition fence, by reason of which the cattle of the one happens to stray into the close of the other. But all the books agree, that where a chattel escapes from the possession of its owner by his consent, exclusive negligence, or other default, he cannot pursue it into the close of another, without becoming a trespasser by his entry; but that he may lawfully enter and retake his property, where it has been wrongfully taken or received by the owner of the land. Now, if the property in the rails in question had been in the defendant, the plaintiff, who had piled them on his land, could not have recovered even nominal damages for the defendant's entry to remove them; and in this respect the direction would have been wrong. But it was in clear and uncontradicted proof, that the defendant, Chambers, had not even a colorable title to the land where the rails were grown and made, and consequently not even a colorable title to enter on the plaintiff's land in order to carry them away, and the inaccuracy of the charge in this abstract particular, was therefore immaterial. Judgment affirmed. 583. MCLEOD v. JONES SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1870 105 Mass. 403 TORT for forcibly entering the plaintiff's close in Taunton, and removing and converting to the defendant's use household furniture found therein. At the trial in the Superior Court, before PITMAN, J., property in and possession of the close (which was the upper story of a house) by the plaintiff were admitted; and the plaintiff introduced evidence to show that he had hired and occupied the premises as a residence and dwelling for himself and his wife and two children, about two years, when in September, 1868, he took them on a visit to Fall River, and he himself went to New York on a visit to his father; that he intended to return to Taunton in about four weeks, but for various reasons changed his original design and ceased to reside in Taunton; that three or four days after he went away, "leaving his furniture and household goods in the same state as he used them for housekeeping purposes, and the doors of his tenement locked," the defendant went to the house with a key that would fit the door, unlocked and entered the tenement, and took and carried away the furniture. It appeared "the plaintiff, while living in Providence, had given to the defendant a bill of sale of a part or the whole of the articles of furniture, and had subsequently brought them with him to Taunton; and that the plaintiff had formerly given to the defendant a mortgage of certain goods owned and used by the plaintiff in his shop, some of which goods the plaintiff testified that he subsequently carried to his house, and were among the goods taken by the defendant." The defendant claimed all the articles taken by him, under the bill of sale and mortgage, and contended that, from the circumstances proved, he had a right to believe that at the time of the entry the plaintiff did not intend to return to Taunton; and he asked the judge to rule that . . he would not be liable in this action. The judge refused so to rule. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions. E. H. Bennett & W. H. Fox, for the defendant. J. Brown, for the plaintiff. WELLS, J. The defendant was liable as a trespasser for entering the plaintiff's close, unless he can justify his entry by some legal right, |