tificates, he or it must file in the office of the recorder of deeds, in the county where any such elevator, warehouse or other building is situated, a written declaration, giving the name and place of residence or location of such person, firm or corporation, that he or it designs keeping or controlling an elevator, warehouse, crib or other place for the sale and storage of commodities mentioned in the preceding section, an accurate description of the elevator, warehouse, crib or other building to be kept or controlled, and where the same is or is to be located, the name or names of any person, other than the one making such declaration, who has any interest in such elevator, warehouse or other building, or in the land on which it is situated, such declaration to be signed and acknowledged by the party making the same before some officer authorized to take acknowledgments of instruments, and recorded in the chattel mortgage record, the party making such declaration to be treated as the vendor in indexing such declaration, and the public as vendee. [21 G. A., ch., 165, § 1.]

SEC. 3124. Effect of certificate-assignment. Each certificate issued by any person firm or corporation shall have printed on the back thereof a statement that the party issuing it has complied with the requirements of the preceding section, giving the book, page and name of the county where the record of such declaration may be found; and, when such certificate is so issued and delivered, it shall have the effect of transferring to the holder thereof the title to the commodities therein described or enumerated, and shall be assignable by written indorsement thereon, signed by the lawful holder thereof, which shall transfer the title of commodities therein enumerated, and be presumptive evidence of ownership in such holder. No record or other notice shall be necessary to protect the rights of the holder of the certificate as against subsequent purchasers of the property. [24 G. A., ch. 44, §§ 1, 4; 21 G. A., ch. 165, § 2.]

SEC. 3125. Registration of certificates and transfers. All certificates given under the provisions of this chapter shall be registered by the party issuing them in a book kept for that purpose, showing the date thereof, the number of each, the name of the party to whom issued, the quantities and kinds of commodities enumerated therein, and the brands or other distinguishing marks thereon, if any, which book shall be open to the inspection of any person holding any of the certificates that may be outstanding and in force, or his agent or attorney; and when any commodity enumerated in any such certificate is delivered to the holder thereof, or it in any other manner becomes inoperative, the fact and date of such delivery or other termination of such liability shall be entered in such register, in connection with the original entry of the issuance thereof. [24 G. A., ch. 44, § 2; 21 G. A., ch. 165, § 3.]

SEC. 3126. Property subject to certificate. No person, firm or corporation shall issue any elevator or warehouse certificate for any of the commodities enumerated in this chapter unless such property is actually in the elevator or warehouse or other

building mentioned therein as being the place where such commod. ity is stored, and it shall remain there until otherwise ordered by the lawful holder of such certificate, subject to the conditions of the contract between the warehouseman and the person to whom such certificate was issued, or his assignee, as to the time of its remaining in store; and no second certificate shall be issued for the same property or any part thereof while the first is outstanding and in force, nor shall any such commodities be by the warehouseman sold, incumbered, shipped, transferred or removed from the eleva. tor, warehouse or other building where the same was stored at the time such certificate was issued, without the written consent of the holder thereof. [24 G. A., ch. 44, § 5; 21 G. A., ch. 165, § 4; C. '73, §§ 2172-4.]

Under similar provisions, held, that a warehouse receipt for grain, issued merely as collateral security for a loan of money, was in contravention of the statute and invalid: Sexton v. Graham, 53-181.

Whether a warehouse receipt will be valid if the intention in executing it is to create a mere lien, quære: Lowe & Young, 59-364.

SEC. 3127. Damages. Any one injured by the violation of any of the provisions of this chapter may recover his actual damages sustained on account thereof, and, if wilfully done, in addition thereto, exemplary damages in any sum not exceeding double the actual damages, which actual damages shall be found and returned by special verdict. [24 G. A., ch. 44, § 6; C. '73, § 2176.]

SEC. 3128. Penalties. Any person who shall wilfully alter or destroy any register of certificates provided for in this chapter, or issue any receipt or certificates without entering and preserving in such book the registered memorandum; or who shall knowingly issue any certificate herein provided for the commodity or commodities therein enumerated are not in fact in the building or buildings it is certified they are in; or shall, with intent to defraud, issue a second or other certificate for any such commodity, for which, or for any part of which, a former valid certificate is outstanding and in force; or shall, while any valid certificate for any part of the commodities mentioned in this chapter is outstanding and in force, sell, incumber, ship, transfer or remove from the elevator, warehouse or building where the same is stored, any such certified property, or knowingly permit the same to be done, without the written consent of the holder of such certificate; or if any person knowingly receives any such property or helps to remove the same, -he shall, upon conviction, be punished by fine not exceeding ten thousand dollars, or by imprisonment in the penitentiary not exceeding five years. [24 G. A., ch., 44, §§ 2, 3, 5; 21 G. A., ch. 165, §§ 3-5; C. 73, § 2175.]

Where a depositor received only scale tickets showing the amount of grain weighed, but did not receive any warehouse receipt, and the warehouseman shipped away the grain deposited until there was no grain remaining to answer for the claim of the depositor, held, that such scale tickets were not warehouse receipts, and that a person taking an assignment of the depositor's claim would be subject to the warehouseman's right to set off against the depositor's claim an indebtedness due from such depositor, which he could not have done if receipts had been issued and transferred: Cathcart v. Snow, 64–584.

SEC. 3129. Certificate as evidence-lien. All warehouse certificates or other evidences of the deposit of property, issued by any warehouseman, wharfinger or other person engaged in storing property for others, shall be in the hands of the holders thereof presumptive evidence that the title to the property therein. described is in the holder of such instrument. Such property shall remain in store until otherwise ordered by the holder of such certificate or other evidence of deposit, and shall not be removed by such warehouseman, or knowingly suffered to pass from his control, without the written consent of the depositor or his assignee, and shall be subject to all just charges for storage thereof; and such warehouseman or other depositary shall have a lien thereon for such charges, and may retain possession thereof until they are paid. [C. '73, §§ 2171, 2173.]

A warehouse receipt which expresses a contract of bailment cannot be varied by parole evidence of a custom or usage or understanding for the purpose of showing that the intention of the parties was that the transaction should be regarded as a sale: Marks v. Cass County Mill, etc., Co., 43-146; Sexton v. Graham, 53-181.

SEC. 3130. Unclaimed property-lien for charges. Property transported by, or stored or left with, any forwarding and commission merchant, express company, carrier, or bailee for hire shall be subject to a lien for the lawful charges thereon for the transportation and storage thereof, or charges and services thereon or in connection therewith; and if any such property shall remain in the possession, unclaimed, of any of the persons named in this section for three months, with the just charges thereon due and unpaid, such person shall first give notice of the amount of the charges thereon to the owner or consignee thereof, if his whereabouis is known, if not, he shall go before the nearest justice of the peace and make an affidavit, stating the time and place where such property was received, the marks or brands by which the same is designated, if any, and, if not, then such other description as may best answer the purpose of indicating what the property is, and the probable value of the same, and to whom consigned, also the charges paid thereon, accompanied by the original receipt for such charges and by the bill of lading, also any other charges due and unpaid, and whether the whereabouts of the owner or consignee is known to the affiant, and whether such notice was first given to him as herein provided; which affidavit shall be filed by the justice for the inspection of any one interested therein, and an entry made in the estray book of the substance of the affidavit, and a statement when, where and by whom made. [26 G. A., ch. 107; C. '73, §§ 2177-8.]

SEC. 3131. Sale-notice. If the property remains unclaimed and the charges unpaid, the person in possession, if the probable value does not exceed one hundred dollars, shall advertise the same for fourteen days, by posting notices in five of the most public places in the city or locality where said property is held, giving such description as will indicate what is to be sold; if the goods

exceed the probable value of one hundred dollars, the length of notice shall be four weeks, and there shall be a publication thereof for the same length of time in some newspaper of general circulation in the locality where the property is held, if there be one, and, if not, then in the next nearest newspaper published in the neighborhood, at the end of which period, if the property is still unclaimed or charges unpaid, it may be sold by him at public auction, between the hours of ten o'clock a. m. and four o'clock p. m., for the highest price the same will bring, which sale may be continued from day to day, by public announcement to that effect at the time of adjournment, until all the property is sold; and from the proceeds thereof all charges, costs and expenses of the sale shall be paid, which sale shall be conducted after the manner of sheriffs' sales, and like costs taxed for like services. [C. '73, § 2179.]

SEC. 3132. Perishable property. Fruit, fresh oysters, game and other perishable property thus held shall be retained twenty-four hours, and, if not claimed within that time and charges paid, after the proper affidavit is made as required by the second preceding section, may be sold either at public or private sale, in the discretion of the party holding the same, for the highest price that the same will bring, and the proceeds of the sale disposed of as provided in the last preceding section. In either case, if the owner or consignee of said unclaimed property resides in the same city, town or locality in which the same is held, and is known to the agent or party having the same in charge, then personal notice shall be given to him in writing that the goods are held subject to his order on payment of charges, and that, unless he pays the same and removes the property, it will be sold as provided by law. [C. '73, § 2180.]

SEC. 3133. Disposition of proceeds. After the charges on the property and the costs of sale have been taken out of the proceeds, the seller shall deposit the excess with the county treasurer of the county where the goods were sold, subject to the order of the owner, take a receipt therefor, and deposit the same with the county auditor. At the same time he shall also file a verified schedule of the property with the treasurer, giving the name of the consignee or owner, if known, of each piece of property sold, the sum realized from the sale of each separate package, describing the same, together with a copy of the advertisement hereinbefore provided for, and a full statement of the receipts of the sale, and the amount disbursed to pay charges and expenses of sale, which shall all be filed and preserved in the treasurer's office for the inspection of any one interested in the same. [C. '73, § 2181.]

SEC. 3134. Duty of treasurer-refunding to owner. If the money remains in the hands of the treasurer unclaimed, he shall place the same to the credit of the county in his next settlement, and if it so remains unclaimed for one year, it shall be paid to the school fund; but any claimant therefor may at any time within ten years appear before the board of supervisors and establish his right

to the same by competent legal evidence, in which case the original sum deposited shall be paid him out of the county treasury. [C. '73, § 2182.]

SEC. 3135. Common carriers-liability for baggage. Omnibus and transfer companies or other common carriers, and their agents, shall be liable for damages occasioned to baggage or other property belonging to travelers through careless or negligent handling while in the possession of said companies or carriers, and, in addition to the damages, the plaintiff shall be entitled to an allowance of not less than five dollars for every day's detention caused thereby, or by action brought to recover the same. [C. '73, § 2183.]

This section gives a remedy for damages to baggage, and for detention caused thereby. It does not authorize a recovery on account of detention of baggage or failure to deliver the same, nor for detention of the traveler unless it be on account of damages done to baggage: Anderson v. Toledo, W. & W. R. Co., 32-86.

SEC. 3136. Cannot limit liability. No contract, receipt, rule or regulation shall exempt any corporation or person engaged in transporting persons for hire from the liability of a common carrier, or carrier of passengers, which would exist had no contract, receipt, rule or regulation been made. [C. '73, § 2184.]

See, also, 2074, applicable to railway companies.

TITLE XVIII, CHAPTER 4.

PLACE OF BRINGING ACTION.

SEC. 3497. Against common carriers. An action may be brought against any railway corporation, the owner of stages, or other line of coaches or cars, express, canal, telegraph and telephone companies, and the lessees, companies or persons operating the same, in any county through which such road or line passes or is operated. [C. '73, § 2582.]

A railway company has a residence in any county through which its road passes and in which it transacts business: Baldwin v. Mississippi & M. R. Co., 5-518; Richardson v. Burlington & M. R R. Co., 8-260.

A railroad, operating a line of road in the county at the time suit is commenced against it there, is subject to jurisdiction of the courts of that county: Knott v. Dubuque & S. C. R. Co., 84-462.

A railway company doing business in the state so that action might be commenced against it as here provided cannot claim advantages of the provisions of the statute of limitations as to nonresidents: See notes to 3451.

An action against a foreign railway company not operating a line of railway nor having any office in the state cannot be brought in the state on a cause of action arising out of business not transacted within the state by means of service of notice on an agent found within the state: Elgin Canning Co. v. Atchison, T. & S. F. R. Co., 24 Fed., 866.