Ide v. Fassett

The opinion of the court was delivered by Barrett, J. It has been for a long time settled in this state that an officer is not liable for property attached by him on mesne process, which has perished without fault for which he is answerable. Bridges v. Perry, 14 Vt. 262; Walker v. Wilmarth, 37 Vt. 289. It is equally well settled that a receiptor of such property is not liable on his receipt, when it has perished without like fault. The defendant, therefore, is not liable for the bees, they having died without such fault. He is not liable for the other property. The case shows that he did not refuse to deliver the property when demanded by the plaintiff. On the occasion of such demand it was arranged between the parties that the defendant should deliver it at a time and. place to be named by the plaintiff. ' This was a waiver of the duty to deliver it to the plaintiff on such demand, and left such demand operative to charge the defendant with the duty of delivering it only upon the appointment of a time and place for the delivery to be made, pursuant to said arrangement. [72] . Without naming such time or place, and notwithstanding the defendant was willing to deliver it at any time and place that the plaintiff would name, yet, without further demand, this suit was brought. We think the case as found by the court does not show a breach of the defendant’s undertaking, in the sense of an actionable failure to deliver the property on demand. The record does not show that hives were either attached or receipted. A swarm of bees, as chattel property, the subject of traffic, and subject to attachment, does not, either in fact, in idea, or in law, by the force of the terms, as practically understood and used, embrace the hive, which, at a given time, they may be in. Each is quite susceptible of being apprehended in idea, and practically regarded and treated as property, separate and distinct from each other. We think, in order to hold the hives under the receipt, it is necessary that they should have been named in the attachment and in the receipt. Judgment affirmed.