378 EETAKIXG RABBITS FROM POACHERS. 



on to land to enjoy the diversion of shootin^:, he must take care that he 

 has the leave of the person justified to give him leave ; if he chooses to 

 risk it, he must suffer the penalty if it is enforced against him" 

 {Morden, appt. v. Porter, respt.). 



Retaking rabbits from poachers. — If A. wrongfully, after request to 

 give it up, detain a chattel from B., the owner entitled to possession, B. 

 has the possession in law, and A.'s wrongful detention against B.'s 

 request is no possession, but is the same violation of the right of pro- 

 perty as the taking the chattel out of the actual possession of B., and 

 B. (or his servants acting under his command) is justified in using 

 force sufficient to defend his right and retake the chattel. This was a 

 declaration for assault and battery, and the plea was that the plaintiff 

 became the holder thereof, and had wrongfully in his possession dead 

 rabbits belonging to E., and being about to carry them away, the de- 

 fendants as servants of E,, and by his command, requested the plaintiff 

 to refrain, which he refused to do, and thereupon defendants as servants 

 of E., and by his command, gently laid their hands on the plaintiff, 

 and took the rabbits from him, using no more force than was neces- 

 sary. This was held a good plea, although it did not allege how the 

 plaintiff took the property of E. And per Curiam .- " It has been 

 decided that the owner of land entitled to the possession may enter 

 thereon and use force sufficient to remove a wrong-doer therefrom. In 

 respect of land as well as chattels, the wrong-doers have argued that 

 they ought to be allowed to keep what they are wrongfully holding, and 

 that the owner cannot use force to defend his property, but must bring 

 his action lest the peace should be endangered if force was justified ; 

 see Newton v. HarJand (1 Man. & G. G44). But in respect of land, the 

 argument has been overruled in Harvey v. Bridges (14 M. & W. 437, 

 14 L. J. (N. S.) Ex. 384). Here Parks B. says : 'Where a breach of 

 the peace is committed by a freeholder, who, in order to get possession 

 of his land, assaults a person wrongfully holding possession of it against 

 bis will, although the freeholder may be responsible to the public for a 

 forcible entry, he is not liable to the other party, and I cannot see how 

 it is possible to doubt that it is a perfectly good justification to say, 

 that the plaintiff was in possession of the land against the will of the 

 defendant, who was owner, and that he entered upon it accordingly, 

 even though in so doing a breach of the peace was committed.' In 

 our opinion, all that is so said of the right of property in land applies 

 in principle to the right of property in a chattel, and supports the 

 present justification. If the owner was compelled by law to seek redress 

 by action for a violation of his right of property, the remedy would be often 

 worse than the mischief, and the law would aggravate the mischief 



