Recaption

The act of a person who has been deprived of the custody of another, to which he is legally entitled, by which he regains the peaceable custody of such person; or of the owner of personal or real property who has been deprived of his possession, by which he retakes possession peaceably. In each of these cases the law allows the recaption of the person or of the property, provided he can do so without occasioning a breach of the peace or an injury to a third person who has not been a party to the wrong.

Co. 3d Inst. 134; 2 Rolle, Abr. 565; 3 Bla. Com. 5.

The right of recaption of a person is confined to a husband, in retaking his wife; a parent, his child, of whom he has the custody; a N mastor, his apprentice; and, according to Blackstone, a master, his servant, — but this must be limited to a servant who assents to the (recaption; in these cases, the party injured may peaceably enter the house of the wrong doer, without a demand being first made, the outer door being open, and take and carry away the person wrongfully detained. He may also enter peaceably into the house of a person harboring, who was not concerned in the original abduction; 8 Bingh. 186. The same principles extend to the right of recaption of personal property. The true owner of goods wrongfully taken may retake them if he can, even from a third party, using (it is said) whatever force is reasonably necessary; Bollock. Torts 361; and may enter, for that purpose, on the first taker’s land, but not on a third person’s land, unless, it is said, the original taking was felonious, or, perhaps, after the goods have been claimed and the occupier of the land has refused to deliver them up; id. In the recaption of real estate, the owner may, in the absence of the occupier, break open the outer door of a house and take possession; hilt if in regaining his possession the party be guilty of a forcible entry and breach of the peace, he may be indicted; but the wrong-doer, or person who had no right to the possession, cannot sustain any action for such forcible regaining possession merely; 1 Chitty, Br. 646. See Cooley Bollock, Torts.