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Kirby v. Foster Case Summary

Case Summary – Kirby v. Foster, 17 R.I. 437, 22A. 1111 [R.I 1891]


  • Was the force used to retake the money by the defendant from the plaintiff was justified?

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  • The right of recapture of chattels involves possession by the owner and wrongful taking or conversion without a claim of right.

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Facts of the Case

  • Kirby [plaintiff] was employed as a bookkeeper by the Providence Warehouse Co. [defendant]
  • One day the Providence Warehouse found $50 was missing from the company, the company held Kirby responsible for the loss of the amount.
  • The company deducted the amount [$50] from Kirby’s pay. On the day of January 20, 1888, Foster handed Kirby some money to pay other employees at work. 
  • Kirby decided to deduct his money from the pay including the$50 that had been withheld from him and then returned the remaining balance to Foster.
  • As result of this Foster seized Kirby and attempted to take back the money from him. The two had a fight which caused Kirby some injuries. 
  • Kirby bought a suit against Foster to recover the damages of the injuries caused by the defendant.


  • When Kirby bought a suit against the defendant in the trial Court to recover the injuries he suffered, the Trial Court entered a verdict in favor of Kirby.
  • The court stated that: If one takes another’s the property for his possession without right and against his will, the owner or person in charge may protect his possession, or retake the property, by the use of necessary force.
  • The defendant argued that the Plaintiff’s conversion of the money to his own personal use was a wrongful conversion amounting to embezzlement, which justifies the defendant’s use of force.

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  • Every action has a reason behind it being done. The jury of the Trial court favored the decision of Kirby because it was her hard-earned money for working in the warehouse. The loss of $50 could have been because of misbalance or stealing or any other reason. 
  • However, there was no evidence that the money was procured by misrepresentation, fraud, or trickery. So the question of where the money was lost was still not answerable. 
  • The decision of the Defendant to cut from his pay was not justified.
  • The force used by the defendant was unreasonable but practically speaking a person should be liable if the loss has been incurred because of him. 

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Importance of the case

The case brings many questions if thought practically. But the rule of using a justified or unjustified force helps to solve the case. A case gives multiple reasons to look upon the laws which are made by giving them a different eye to look at. Laws like embezzlement, conversion, justified/unjustified force needs more clarification.

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