#### *D.*& *J. Ewart vs. T. J. Kerr.*

Flaintiffs "brought an action of trover against defendant, for seven bales of cotton, \ part of a cargo shipped by them to their factors in Charleston, on board Michael Har-kins’ *Bay Boat the Belle.*During the voyage the cotton thus shipped was damaged to the amount of $358,61; defendant detained the seven bales of cotton, under his lien as a carrier for freight. The damage done to the cotton, exceeded the claim of freight. Held, among other things, first. That the factors, the consignees of the cotton, had no such interest as divested the plaintiffs of their right of action.

2. That where the injury, done by the carrier to the cargo, exceeded the freight, to that extent the carrier’s right to freight, would be defeated.

3. That here the thing converted, is reduced to money, in the hands of the defendant, *J*the smallest measure of damages in trover, is always the amount received from the con- / version, with interest from the time of conversion. *,*

*Before*O’Neall, J., *at*Charleston, *May*Term, 1840.

This was an action of trover for the recovery of the value of 7 bales of cotton, part of a cargo of 250 bales, shipped from Columbia by the plaintiffs, to their agents, Boyce, Henry *&*Walter, Charleston, at the freight of $1 per bale, on a bay-boat called the Belle and owned by one Michael Harkins. The boat was near five weeks in accomplishing her trip; on her arrival, it was found the cotton was damaged by exposure to the weather, during the wet and warm weather of July and August, in which she made her trip. The defendant was the agent of Harkins: he and Boyce, Henry and Walter, as the agents of the plaintiffs, agreed upon a survey, and the surveyors found that the cotton was damaged in the manner already stated. The plaintiffs proved the actual damage sustained to the amount of $358 61. From this amount of damages, the agents of the plaintiffs insisted the freight should be deducted. The defendant contended that the freight should be paid, and his demand not being complied with, he delivered 243 bales of the cotton, and retained 7 bales for the freight. The plaintiffs, by their agents, demanded the cotton, which he refused to give up, and thereupon this action was brought. Subsequently, by an agreement between the plaintiffs and the defendant, the 7 bales of cotton were sold, and so much of the proceeds as exceeded the freight, was paid to the plaintiffs; *the*amount covering the freight was to be recovered or retained, according to the *142rights of the parties, as they might he adjudged in this case. Pending this suit, Harkins died. The ’ plaintiffs sued his Administrator for the damage done to the cotton, and recovered $358 61, for which sum, on the 30th of July, 1839, they entered up judgment. On this judgment which had been recovered, subject to the plea of *plene administravit praeter,*the plaintiffs received their dividend of the effects of Harkins, amounting to $215 16, leaving a balance of their damages, $143 45, still unpaid; At the close of the plaintiffs’ case, the defendant moved for a non-suit, on the grounds,

1st. That the action ought to have been in the name of the consignees.

2d. That there was still a balance of freight due to the carrier, after allowing the plaintiffs to discount their remaining damages against it. The freight being $250, the balance of damages unpaid $143 45, there remained $106 55 of freight, still due, for which the carrier and the defendant, his agent, had a lien upon the 7 bales of cotton, no tender of this balance of freight having been proved.

On the first ground it was ruled by the Court, that the proof was clear that Boyce, Henry *&*Walter' were merely the agents of the plaintiffs, to sell the cotton; and that they had, therefore, no such interest under the consignment, as divested the plaintiffs of their right of property.

On the second ground, it was held, that at the bringing of this suit, the damage done to the plaintiffs’ cotton exceeded the freight. That they subsequently recovered a part of it, was in aid of the defendant, by relieving him from a portion of the sum in his hands, to which the plaintiffs were entitled. It could not affect their legal rights, to recover against the defendant when their action was brought.

The motion for non-suit was overruled.

The case went to the jury, who were instructed, if the cotton was injured in the possession of the carrier, by any thing else than such as arose from the act of God, or the enemies of the country, that then the carrier would be liable for such injury, and that it would, to its extent, defeat his right to freight. They were told that in the ac*143tion of trover, the plaintiffs were entitled to interest on the value of the thing converted from the time of conversion, and that here, after they had allowed the deduction of the sum paid by Harkins’ estate, they would be entitled to interest on the balance of their damages in the hands of the defendant from the conversion.

The jury found accordingly; the defendant renews, in the Court of Appeals, his motion for non-suit, on the grounds taken on the Circuit, and failing in that motion, he moves for a new trial, on the grounds,

1st. That no interest should have been allowed on the balance of damages, $14345, prior to the judgment against the administrator, 30th July, 1839, as until then they were unliquidated.

2d. The plaintiffs had demanded interest on their damages in their action against the administrator of Harkins, and the jury had refused to allow it.

3d. That if the plaintiffs were entitled to a verdict, under the circumstances, the damages should have been only nominal.

Curia, *per*

O’Neall, J.

This case indirectly makes the same question which was formerly decided, and with which we remain satisfied, notwithstanding the frequent direct and indirect reviews to which it has been subjected. No one ever doubted that a carrier’s lien consists in a right to retain his cargo until paid his lien. But when he retains only a part and not the whole, I think he may be fairly required to measure the part retained by the amount due: if, in point of fact, he had no lien on account of damages sustained by the plaintiff, in the transportation of the goods, then the allowance of the balance of freight due to him is a new matter in mitigation of damages.

The true view of the case is to consider it as standing upon the proof, that the plaintiffs’ cotton was damaged to the amount of $358 61, which is a greater sum than the freight due, and when this was shown, the defendant’s right to retain for freight was also gone. For it all properly ought to be absorbed in damages: and if in the action brought by *Ewart vs. Harkins’s*administrator, the de*144fendant had set off the freight, the whole matter would have been free from difficulty. If he did not choose so to do, the plaintiffs’s right cannot be thereby affected. The utmost which Harkins, in whose place the defendant is, could now ask in the case against him, "would be to diminish the damages in trover by deducting from the amount for which the cotton sold, as much as might remain of the freight, after deducting the uncollected balance of the damages found for the injury done to the cotton. This was done in this case; but it is said the defendant is injured by this course. How? He has $250 of the plaintiff’s cotton in his hands. If Harkins had set off the freight in the action against him, the defendant must have paid this whole sum, with interest and costs; as it is, he has $105 55 left in his hands to be accounted fór to Harkins, out of which he may retain his costs. In this way it seems to me he is benefitted. But it is agreed, the plaintiffs get more in the way in which they proceeded than they would if the freight had been deducted at law. If that had been done, they would have recovered the whole sum retained by Kerr for freight, $250, and their dividend on $148 65 the balance of their damages, say $86 07, making an aggregate of $358 61. Now they receive their dividend on $358 61, the demages found, $215 16, and $143 45, the verdict in this case, making an aggregate of $358 61. But they pay on account of the freight, the balance left in Kerr’s hands $106 65, which must be deducted from the.last aggregate, which leaves the amount really obtained by them, by the course of actions to which they have been driven $251 96, less by $84 11 than the sum to which they would have been otherwise entitled.

But these considerations really have nothing to do with this case; the recovery of damages against Harkins’ administrator could not restore the defendant’s lien. It was ended from the fact of injury done to the plaintiffs cotton to a greater amount. After the recovery, Harkins’ administrator might have brought a cross action for his freight, against which any balance due in the former recovery, would be set off. Without all this circuity this has been done in effect by the verdict here. The other grounds relating to interest may be disposed of at once, by simply re*145marking that where the thing converted, is reduced to money in the hands of the defendant, the smallest measure of damages in trover, is always the amount received] from the conversion, with interest from the time of convert sion. The motion is dismissed.

M’Cready *&*Caldwell, for the motion.

Petigru *&*Lesesne, contra.

JOHN BELTON O’NEALL.

We concur. Josiah J. Evans, A. P. Butler, D. L„ Wardlaw.