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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.

Recaption may be made of a person, of personal property, of real property; each of these will be separately examined.

1. The right of recaption of a person is confined to a hushand in re-taking his wife; a parent, his child, of whom he has the custody; a master, his apprentice and, 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 wrongdoer, 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.

2. The same principles extend to the right of recaption of personal property. In this sort of recaption, too much care cannot be observed to avoid any personal injury or breach of the peace.

3. 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; but if, in regaining his possession, the party be guilty of a forcible entry and breach of the peace, he may be indicted; but the wrongdoer or person who had no right to the possession, cannot sustain any action for such forcible regaining possession merely.

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