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Unless the consignor accompanies the freight, and retains exclusive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself from liability, for the loss or injury thereof, except
1. An inherent defect, vice, or weakness, or a spontaneous action of the property itself.
2. The act of a public enemy of the United States, or of this State. 3. The act of the law; or, 4. An irresistible superhuman cause.
He is liable, even in the cases above excepted, if his ordinary negligence exposes the property to the cause of the loss. A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence.
A marine carrier is liable in like manner as an inland carrier, except for loss and injury caused by the perils of the sea or fire.
MORTGAGES OF PERSONAL PROPERTY.
Mortgages may be made upon1. Locomotives, engines, and the other rolling-stock of a railroad.
2. Steamboat machinery, and machinery used by machinists, foundrymen, and mechanics.
3. Steam-engines and boilers.
8. Upholstery and furniture used in hotels, lodging or boardinghouses, when mortgaged to secure the purchase money of the articles mortgaged.
9. Growing crops..
11. Instruments, negatives, furniture and fixtures of a photographic gallery.
12. The machinery, casks, pipes, tubs and utensils used in the manufacture of wine, fruit brandy and fruit syrup or sugar.
A mortgage of personal property is void as against creditors of the mortgagor, and subsequent purchasers and incumbrancers of the property in good faith and for value, unless
1. It is accompanied by the affidavit of all the parties thereto that it is made in good faith, and without any design to hinder, delay, or defraud creditors.
2. It is acknowledged or proved, certified and recorded.
A mortgage of personal property must be recorded in the office of the County Recorder of the county in which the mortgagor resides, and also of the county in which the property mortgaged is situated, or to which it may be removed.
A certified copy of a mortgage of personal property once recorded may be recorded in any other county, and when so recorded, the record thereof has the same force and effect as though it was of the original mortgage.
When property mortgaged is thereafter by the mortgagor removed from the county in which it is situated, it is, except as between the parties to the mortgage, exempt from the operation thereof, unless either :
1. The mortgagee, within thirty days after such removal, causes the mortgage to be recorded in the county to which the property has been removed ; or,
2. The mortgagee, within thirty days after such removal, takes possession of the property, as prescribed in the next paragraph.
If the mortgagor voluntarily removes or permits the removal of the mortgaged property from the county in which it was situated at the time it was mortgaged, the mortgagee may take possession and dispose of the property as a pledge for the payment of the debt, though the debt is not due.
Personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor. Before the property is so taken, the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the County Clerk or Treasurer, payable to the order of the mortgagee.
When the property thus taken is sold under process, the officer must apply the proceeds of sale as follows:
1. To the repayment of the sum paid to the mortgagee, with interest from the date of such payment; and,
2. The balance, if any, in like manner as the proceeds of sales under execution are applied in other cases.
A mortgagee of personal property, when the debt to secure which the mortgage was executed becomes due, may foreclose the mortgagor's right of redemption by a sale of the property made in the manner prescribed in the chapter on "pledge," or may proceed by a judicial sale under the direction of a competent Court.
A pledge is a deposit of personal property by way of security for the performance of another act.
When a debtor has obtained credit, or an extension of time, by a fraudulent misrepresentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value represented ; and in default thereof may recover his debt immediately, though it be not actually due.
When performance of the act for which a pledge is given is due, in whole or in part, the pledgee may collect what is due to him by a sale of the property pledged.
Before property pledged can be sold, and after performance of the act for which it is security is due, the pledgee must demand performance thereof from the debtor, if the debtor can be found.
A pledgee must give actual notice to the pledgor of the time and place at which the property pledged will be sold, at such a reasonable time before the sale as will enable the pledgor to attend.
The sale by a pledgee of property pledged must be made by public auction, in the manner and upon the notice to the public usual at the place of sale, in respect to auction sales of similar property; and must be for the highest obtainable price.
A pledgee cannot sell any evidence of debt pledged to him, except the obligations of governments, States or corporations; but he may collect the same when due.
The pledgor may require the property to be sold when it will bring a sufficient amount to satisfy the claim of the pledge.
A pledgee or pledge-holder cannot purchase the property pledged, except by direct dealings with the pledgor.
Instead of selling property pledged, as hereinbefore provided, a pledgee may foreclose the right of redemption by a judicial sale, under the directions of a competent Court; and in that case may authorized by the Court to purchase at the sale.
GUARANTY AND SURETYSHIP.
A guaranty is a promise to answer for the debt, default, or miscarriage of another person.
Where a guaranty is entered into at the same time with the original obligation, or with the acceptance of the latter by the guarantee, and forms with that obligation a part of the consideration to him, no other consideration need exist. In all other cases there must be a consideration distinct from that of the original obligation.
Except as hereinafter described, a guaranty must be in writing, and signed by the guarantor; but the writing need not express a consideration.
A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing :
1. Where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise ; or by one who has received a discharge from an obligation in whole or in part, in consideration of such promise.
2. Where the creditor parts with value, or enters into an obligation in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made his surety.
3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor; or upon the consideration that the party receiving it releases the property from a levy, or his person from imprisonment, under an execution on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person.