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

The plaintiffs delivered two hundred and fifty bales of cotton to one Hawkins, as a common carrier, to be delivered by him to Boyce & Co., the consignees. The defendant, as agent of Hawkins, delivered two hundred and forty-three bales; but detained the remaining seven *for freight,*and refused to deliver them. Plaintiffs brought an action of trover against the defendant for the seven bales, and on the trial offered to prove that the cotton shipped was damaged, *by the default of the carrier,*to an *204amount exceeding the value of the freight. The judge below overruled the evidence, and nonsuited the plaintiffs. Nonsuit set aside, and new trial awarded. [Eaeke and Richaedson, Justices, dissenting.]

Under the English law of set-off, in an action by the carrier for freight, where goods have been delivered (though in a damaged condition,) and accepted, the defendant cannot set up a defence by way of discount or set-off, that the goods were damaged; for their statutes of set-off only apply to *liquidated*demands, and not to uncertain or unascertained damages. The freighter, in such a case, is put to his cross action.

Yet, under the discount act of this state, (P. L. 246,) which uses the terms “any accompt, reckoning, demand, cause or thing against the plaintiff,” the damages sustained by goods in their transportation may, in all cases, whether the freight be agreed upon by the parties or not, be set up as 'a defence to the action by the carrier for his freight; and if such damages are equal to, or exceed the freight, the defendant must recover: and in this point of view, the defence becomes essentially a *cross*action.

Under the law of this state, the carrier’s right of lien for freight is only coextensive with his legal right of action; if his claim to recover in the particular case could not be gainsayed, then it would follow that his *lien*could not be disputed. But as the owner may show in avoidance of his claim to recover freight, that the goods were injured in the transportation, it follows that his *lien*must be liable to be defeated in the same way.

“ Where there is no debt, there is no lienand if it can be shown that the carrier has injured the goods of the shippers to a greater amount than his whole freight, it cannot be pretended that they owe him any thing: and hence, the owner may maintain trover against the carrier, for the goods which he detains, on account of his supposed claim to freight, and refuses to deliver.

To maintain trover, it is only necessary for the plaintiff to show a right of property and of possession in himself, and a conversion by the defendant.

Eakle and Richaedsoh, Justices, (dissenting,) were of opinion that the carrier’s lien for freight entitles him to retain possession of the goods until his freight be paid: that he has a special property in the goods, which can only be divested by payment of the freight or tender of it, and that being in actual possession he is not liable in trover, however else he may be liable, or to whatever extent, for any damages which the goods may have sustained. That according to all the English cases, where the goods are delivered and accepted, in whole or in part (though damaged), the freighter cannot set up the damages as a defence or by way of discount, to an action for the freight, but is put to his cross action. That although it might be admitted, that under the terms of our discount act, the freighter may set up the damages by way of defence or discount, to an action for the freight, yet that the defendant in this ease, by delivering the principal part of the goods to the consignees, which they had accepted, was entitled to his freight, and had a right to retain the balance until the freight was paid or tendered; and that trover would not lie against him.

*205*Before EARLE, J., at Charleston, May Term,*1835.

This was an action of trover, for seven bales of cotton. The plaintiffs proved the delivery of two hundred and fifty bales of cotton, in good order, to Michael Hawkins, in Columbia, a common carrier, to be delivered by him to Boyce & Co., Charleston, at one dollar per bale. Defendant, as the agent of Hawkins, delivered two hundred and forty-three bales, and detained seven for freight. Plaintiffs offered to prove that the cotton was damaged to an amount exceeding the value of the freight, by the default of the carrier. His honor, the presiding judge, overruled the evidence, and nonsuited the plaintiffs. .

The plaintiffs now move to set aside this order for the following reasons: 1. By the law, as well as the usage of trade, damages for which the carrier is responsible should be settled in the settlement of the freight. 2. Because, when the carrier has not fulfilled his contract, or when his neglect has occasioned damages equal to the amount of freight, there is nothing due to him; and there can be no lien where there is no debt.

Curia, per O’Njeall, J.

This case has been subjected to a great deal of examination, and the result has been a well settled judgment, on the part of a majority of the court, that the nonsuit must be set aside. The cases to be found in the books of reports have, *in general,*little application; they are actions for the recovery of freight when the goods had been delivered. The injury done to them in their transportation is said not to be a matter of defence, but of a cross action; as in the case of Shields v. Davis, 6 Taun., 65. The reason of this, in England, is plain. In 1 Tidd’s Practice, 603, it is said, “ The actions in which a set-off is allowable upon these statutes, (2 Geo. II. c. 22, sec. 15; 8 Geo. II. c. 24, sec. 4,) are debt, covenant and assumpsit for the non-payment of money, and the *demand intended to he set off must he liquidated,*and such as might have been made the subject of one or other of *206these actions. A set-off, therefore, is never allowed in actions upon the case, trespass or replevin, &c., nor in debt on bond, conditioned for the performance of covenants, &c. nor in covenant or assumpsit for general damages, and a penalty of *uncertain damages*cannot be made the subject of a set-off.” The damages which goods may have sustained in the possession of a carrier are so uncertain ill amount that they could not, in England, be set off; and hence, to an action for freight, the defendant could generally make no defence, arising therefrom. The only case which I have been able to find, having a direct bearing on this case, is from New-York, Sherman v. Withers, Anthon’s N. P. 166. In that case it was held, “ if a common carrier demand compensation on a *quantum meruit,*the owner may show in bar of such compensation, that the goods were damaged in the transportation to an amount exceeding that of a fair rate for the safe carriage.”— The reason why that defence is allowed in that case is, because the plaintiff demands compensation by no fixed price agreed upon between him and the defendant, and hence that he cannot recover, where the defendant has received no benefit from the transportation. The direct application of that case to the one in hand, arises out of the change which our discount law has effected in the defence to cases brought for the recovery of freight. By the terms of our act, P. L. 246, “ any accompt, reckoning, demand, cause, matter or thing against the plaintiff,” may be relied upon as a defence by way of discount. Under this act, the damages sustained by goods in their transportation may, in all cases, whether the freight be agreed upon by the parties or not, be set up as a defence to the action by the carrier, for his freight; and if such damages are equal to or exceed the freight, the defendant must recover. In this point of view, the defence becomes essentially a cross action, and is covered by what is said by Ch. J. Gibbes, in the case of Shields v. Davis, in which he ruled that the carrier, although entitled to recover freight when he delivers the goods, is notwithstanding liable to a cross action, for an injury sustained by the goods in their transportation. That which in England required two actions is here attained in one. It is hence that the fact that the goods have been delivered, and that the carrier has *207earned his freight, cannot preclude the defence in this state. That conceding these facts, still he may not be entitled to recover any thing, if the goods have been injured to the amount of the freight. This change in the law must necessarily be carried into the consideration of the carrier’s right of lien. His lien is nothing more than giving, by his own act, effect to what may be his legal right by action. If his claim to recover could not be gainsayed, then it would follow his lien could not be disputed; but if the owner may show, in avoidance of his claim to recover freight, that the goods were injured in the transportation, it follows that his lien must be defeated in the same way. Where the damages sustained are equal to the freight, there can be no difficulty ; for, the owner contesting the lien must show facts sufficient to defeat it in the opinion of a court and jury, and on the recovery thus had, the whole matter is ended. If the damages be not equal to or more than the *freight, then the*plaintiff could only recover for such goods, detained by the carrier, as were more than sufficient to pay his freight.

This matter may, however, be further illustrated. A lien always supposes that something is to be paid for and on account of the goods detained. If nothing in point of fact is due, how can it be pretended that there is a lien ? I agree fully with the plaintiff’s counsel in the dictum “ where there is no debt there is no lien.” If it can be shown that the carrier has injured the goods of the plaintiffs, to an amount greater than his whole freight, it cannot be pretended that they owe to him any thing; and hence, the plaintiffs are entitled to maintain this suit.

But let us apply another and a still more simple test. The plaintiff’s action is trover: what is necessary to' maintain it ? Right of property, and of possession, and a conversion by the defendant.

The plaintiff’s right of property and possession is clear, upon the payment of the freight due the carrier. If his claim of freight could be defeated by the injury done to the goods, in an action brought by him to recover it, it cannot be said that freight is, in law, due to him. The plaintiffs, having thus right of property and possession, on the proof of conversion their case was made out, and they were entitled to recover.

*208These views satisfy me that the nonsuit was improperly ordered ; the lien of the carrier is, according to them, made exactly equal to his remedy by action; and this is as far as any remedy by the act of the party is ever allowed to go. It is his own administration of justice, instead of the more tardy mode of attaining the same end by action.

The motion to set aside the nonsuit is granted.

Gantt, Evans, and Btjtlee, Justices, concurred.

Eakle, J.

dissenting. From the best consideration which I have been able to bestow on this case, I am still of opinion that, in point of law, the plaintiffs cannot maintain this action, and that the nonsuit was properly ordered. The carrier’s lien for freight is too well established to be brought into question, and this entitles him to retain possession of the goods until his freight be paid.— He has a special property in them which, I hold, can only be divested by payment of the freight, or tender of it; and being in actual possession, he is not liable in trover, however else he may be liable, or to whatever extent, for any damages which the goods may have sustained. The first proposition for *the*plaintiffs, that by the law as well as the usage of trade, damages should be settled in the settlement of freight, derives no support from authority. The case of Bellamy v. Russell, 2 Show. 166, cited, is a direct authority the other way, and admits the law and usage of trade to be otherwise, but was decided upon a special custom *to*detain freight for damage. That the common law of England is otherwise, and that damages even through the default of the carrier cannot be set off against freight, even in actions brought to recover freight, will appear from several cases. Bornmann v. Tooke, 1 Camp. Rep., 377, was an action for freight; and when it was proposed to set off the damage suffered by the goods, against the demand for freight, Lord Ellenborough said “the defendant must bring his cross action for any loss he might have suffered from the default of the plaintiff. Shields v. Davis, 6 Taun. Rep., 65, was an action of assumpsit for the freight of butter; the casks having been accepted by the defendant from the plaintiff) who was the *209carrier. The defence was that the butter was injured by the negligence of the plaintiff, and that therefore he could recover nothing. The jury found fot the plaintiff and on a motion for a new trial, the argument of Best, Sergeant, was exactly that used here, that the plaintiff’s right to freight attached only on the safe delivery of the goods; and if though delivered, they were not safely delivered, he could not recover freight; and, at all events, where the extent of the damage done to the butter was greater than the whole amount that would .have been due for the freight, the plaintiff could receive nothing : but the defence was not allowed. Gibbs, Ch. J., said, the- plaintiff is liable to a cross action, and Heath, J. added, “ here the consignee has accepted the goods, and the principle is, that if he has received any benefit whatever by the carriage, he cannot set up this defence.” The principle laid down by-Mr. Justice Heath, is fully admitted, and laid down by all the commentators and elementary writers, who agree that freight is earned whenever the goods are delivered and accepted, although in a damaged condition. The carrier, therefore, in this case, was entitled to receive, and had a right of action for, his whole freight; and according to the English cases, the damages could not have been set off but the freighter must bring his cross action.

The argument o.n the 2d ground for plaintiffs is, that by our discount law, in case of an action brought for freight, the owner may, under notice, prove that the goods have been damaged beyond the amount due for freight, and on such proof would recover the excess; and this may well be admitted without at all affecting the true grounds on which the defendant in this case stands. He does not bring his action for freight, and therefore there is no room for this discount. He has a special property, and is in possession of the goods, and having earned his freight, which the plaintiffs having accepted a large part of, are estopped from saying he has not earned — he has a right to retain the goods until payment or tender. To hold him liable in trover, upon the bare proposition that the goods are damaged beyond the amount of freight, I speak it with deference, is to repeal the laws of lien for freight, and to introduce a novel principle into the law of trover.’ To make the *210right of property or possession in trover to depend upon the question of a greater or less amount of damages to goods, is to make an issue altogether foreign to that made by the record, and one which a consignee, as in this case, or the owner of the boat himself would never know how to meet. It would seem, on well settled rules of law, that a right to maintain or resist an action, must be absolute and perfect when the action is brought. The rights of the plaintiff at least must always be referred to the time of action brought; yet, in such a case as this, neither the plaintiff nor the defendant can by any possibility know — the one, whether he can sustain his action, or the other, whether he can resist it; but the event of the suit is made to depend on circumstances, of which both, in nine cases out of ten, must be ignorant. The carrier having brought the goods to the place of destination and delivered a large portion, has a certain and ascertained demand, with a legal right to retain so much of the goods as will discharge it. It would seem to be right, and reasonable, and just that this right on his part should protect him against an action of trover, until extinguished by some counter demand equally legal and certain, nor that he should be deprived of his lien and driven to his action for freight, on the mere ground that he had made himself liable to a cross action. The effect of such a decision will be to compel the carrier or his agent in every case where there is any plausible allegation of damages, to abandon his lien and deliver the goods. The argument of avoiding multiplicity of suits has no foundation whatever. The carrier will be driven to his action for the freight and the freighter to his discount for damages, and vice versa. If the freight exceed the damages, the lien, which would have been good, is gone, and the goods disbursed, to the entire loss, perhaps, of the carrier’s demand.

If damages to the goods will extinguish the lien for freight, why would not any other right of action which the freighter might acquire against the carrier, if it should exceed ..the amount due for freight? For, if the question of damage to the goods may be tried on an issue in trover, I see no reason why any other damages, whether by contract or tort, wherein lands or goods are concerned, may not as well be laid. The hardship and unreasonableness of *211the rule about to be established might be further illustrated in its operation upon other classes of liens — those of attorneys, factors, innkeepers, and the like ; for all must be subjected to the application of the same principle, if it be one, that an actual right to property in possession may be extinguished or perfected by incurring a liability for damages. But the great difficulty, which I cannot get over, is, that the plaintiff cannot know whether he has a perfect right of action, nor the defendant, whether he can or ought to resist it; for neither can know the amount of damages which may be proved, and on that the right of recovery is made to depend. Suppose a case, where the damage proved is exactly equal to the amount of freight, who shall have the verdict ? Suppose the plaintiff proves less damage, does he fail in his action altogether, or entitle himself to an abatement *pro tanto,*from the amount due for freight ? The anomalies of this proceeding are numerous and striking. I think it would be safer and more conformable to precedent and authority to support the lien, and let the freighter bring his action for the damages in proper form.

Note. — In relation to the principal questions involved in this case, in the discussion and determination of which the court were so seriously divided, it may not he amiss, and the reporter trusts it will not be considered presumptuous in him, to submit some additional references to authorities, and possibly some views which have occurred to him on the subject. It is clear according to the authorities in England, that in an action by the carrier against the shipper or consignee, for freight, where the goods have been delivered and accepted, the defendant cannot set up, , by way of defence or set-off to the plaintiff’s, action, the. damage which the goods may have sustained in their transportation, whether that damage be more or less than the freight, or precisely equal to it, and that the .freighter must bring his cross action. (See the cases referred to by his Honor, Judge Earle, in his dissenting opinion.) Such a defence is clearly not embraced under the English statutes of set-off. Is it admissible under ours *1*The terms of our discount law are very broad, and *would seem, prima facie,*so extensive as to *212embrace any demand or cause of action which the defendant may have against the plaintiff, of whatever character it may be. The material words are, “ that in all actioné whatever, brought for the recovery of any debt by any plaintiff, &c., it shall and may be lawful for the defendant, *if he have any accompt, reckoning, demand, cause, matter, or thing, against the plaintiff,*to give the same in evidence by way of discount, &c.” It further provides “ that judgment shall be entered up for the *plaintifffor the balance only,*and that if the plaintiff be found to be *indebted*to the defendant, judgment shall be entered for the defendant, &c., *provided*the defendant intending to discount *any sum or sums of money, accompts, reckonings, demands, matters, or things, alleged to be due and owing to him from the plaintiff,*do make a copy and deliver the same twelve days before the trial.” Do not the words *indebted to the defendant, balance, sum or sums of money, alleged to be due and owingto him from the plaintiff,*evidently apply to monies due to the defendant upon contract, and limit the generality of the other terms employed ? Would il be a forced construction to say, taking the whole act together, not only that it applies merely to monies due to the defendant upon contract, but that it is further limited to cases where the amount is *certain*and *liquidated by*the contract, and was never intended to apply to a case of *uncertain*or *unliquidated damages,*although arising upon contract? What, otherwise, are the meaning of the terms *indebted, alleged to be due and owing,*from the plaintiff? The constructions given to our act by some of the earlier cases, would seem to conflict with each other, and there is perhaps no case in which the true construction is definitely settled. In Cook v. Rhine, 1 Bay. Rep. 16, Heyward and Grimke, Justices, contrary to the opinion of Bay, J., held that “ where damages accrue by non-performance of a contract for building a house within a *certain time,*the defendant might, under our discount law, give them in evidence against the plaintiff’s demand for work, labor and services performed in building the house.” The argument of counsel there was, on one side, that the discount law only extended to *liquidated*accounts and not to matters *sounding*in *damages;*and on the other, that the act extended to *any cause, matter*or thing, *in the defendant’s own right, to be set off.*

*211*Petigru*and *Lesesne,*for the motion.

*M’Grady,*contra.

Richaedson, J. concurred with Mr. Justice Eaele.

*212If the principal case before the court, had been an action by the carrier against the shipper for freight, the analogy between it and the case of Cook v. Rhine, would be very marked, and as far as the construction of the discount law is involved, that case may be considered almost'identical. In Gibbes v. Mitchell, 2 Bay, Rep. 351, in which the true construction of the discount act came up again for consideration, the court, (consisting of Waties, Bay, Johnson, Trezvant and Brevard, say, “ that the discount law never meant that *torts, trespasses*or *any unascertained damages,*should be set off. That it contemplated debts, dues and demands,'of a pecuniary nature, or something springing out of a contract where there were mutual covenants, &c., and “ that the word *balance*due to the defendant, for which a judgment is directed by the act, if found by the jury, furnished further proof of the intention of the legislature, that *money transactions*only were alluded to in the act.”

Although numerous cases involving the right of discount have occurred *213since the above, they have been principally cases of defence by way of discount to actions on bonds or notes given for the purchase money of property, where there has been a partial failure of consideration, or misrepresentation, or fraud in the sale, and the general construction of the statute upon the points discussed, remains, as far as the reported cases go, upon Cook v. Rhine and Gibbes v. Mitchell. But assuming either construction of the statute, and that in an action by the carrier for freight, in such a case as the above, the freighter might set up the damage done to the goods as a discount to the plaintiff’s action,-does it follow necessarily that the freighter under such circumstances can sustain an action of trover for the recovery of a part of the cargo detained by the carrier for freight, without paying or tendering the freight money to him ? In virtue of the delivery of the goods, the carrier acquires a special property in them and may maintain an action against any person who displaces that possession, or does any injury to them; and having once acquired the lawful possession of the goods for the purpose •of carriage, the carrier is not obliged to restore them to the owner, even if the carriage is dispensed with, unless upon being paid his due remuneration. Story. Com. on Bailments, p. 372. The carrier is also entitled to a *lien*on the goods for his hire, and is not compellable to deliver them until he receives it, unless he has entered into some special contract, by which it is waived. — Ibid, p. 373. The consignor or shipper is ordinarily bound to the carrier for the hire or freight of the goods ; but whenever the consignee engages to pay it, he also may become responsible. It is usual for hills of lading to state that the goods are to be delivered to the consignee or to his assigns, he or they paying freight; in which case, the consignee and his assigns, by accepting the goods, become, by implication, bound to pay the freight. Ibid, p. 373, 374.

Now what was the contract in this case on the part of the carrier 1 It was to deliver the 250 bales of cotton to Boyce & Co. (the consignees,) at Charleston, they paying freight for the same at the rate of one dollar per hale. The agent of the carrier, (the defendant,) delivered 243 bales of the cotton to Boyce & Co. which were accepted by them, and detained the remaining seven bales under his right of lien for the freight. The contract then was to deliver to Boyce & Co. on their paying freight for the same; by accepting the 243 bales, as between the carrier and the consignees, would they not have been estopped from setting up any damage done to the cotton in its transportation, through the fault of the carrier, in bar of the carrier’s claim for freight"! But above all, could the shipper under this state of facts, claim the possession of the cotton by an action of trover ! It does not appear by the statement of the case, that there was a bill of lading, though it is perhaps fairly inferrible that there was one, and that the bill of lading came into the hands of-Boyce & Co. the consignees. In this'viewof the evidence, where was the right of property and of possession? In the plaintiffs, the consignors ? or in Boyce & Co. the consignees ? even waiving the right of the carrier to retain for freight. It is fair, however, to suppose that the question was agreed to be considered by the counsel in the case, as if the consignees were the plaintiffs in the action, or the present *214plaintiffs as having all the rights of the consignees. In any view of the evidence, it appears that the greater portion of the cotton had been delivered and accepted — and the question results, would an action of trover lie against the carrier, either in favor of the consignors or consignees, while the freight agreed to be paid was unpaid ! As to the *consignors,*standing upon their own rights merely, would not the production of the contract itself, between them and the carrier, show that *they*had no right to the possession, while the condition upon which the carrier was to deliver the goods to the consignees, to wit, the payment of freight at a stipulated price per bale, was unperformed ! and as to the right of the consignees to sustain trover, does not the same objection apply, strengthened by the fact that they had accepted the greater part of the cotton, and thereby had assented to the terms of the contract and impliedly agreed to pay the stipulated freight.

But it is assumed that if the goods were damaged by the fault of the carrier, to an amount equal to, or more than the freight, no *freight*was due— and that there was consequently no lien, and that an action of trover would lie against the carrier to recover possession of the goods. Conceding, however, the fact of damage, does it follow that no freight was *dice?*All the authorities show that the freight is earned and payable when the goods are delivered; (although in a damaged condition, and that by the fault of the carrier.) In such a case, the shipper, in the exparte adjustment of the matter which he is supposed to make of the damages and freight, does not deny that freight is due, but on the contrary allows it, as a precedent charge, and if the damages were less than the freight, would be bound to tender it, and if more, would allow it, as so far reducing his claim for damages. Can it be said that a bond, or note, payable to the plaintiff, is not *due,*because the defendant has a counter claim against him to an equal or *greater*amount! even though it be one which he may clearly set up by way of discount!— Does not sound policy, as well as the symmetry of the law, require that the freighter should be put to his cross action for damages, rather than allowed to delay ór embarrass the prompt payment of freight, by counter claims for damages, or actions of trover for the goods ! There might be cases, it is true, where the right to discount the damages against the freight, would be important, as where the carriers were insolvent, or irresponsible, or out of the jurisdiction of the *court;*but as a general rule, would not that which requires the unconditional payment of the freight on delivery of the goods, and puts the freighter to his cross action for damages, be found most congenial to the interests of commerce, as well as most in harmony with the general principles of the law!

The length of this note, (already extended much further than was interned,) and for which the reporter is perhaps bound to apologise, as throwing no new light on the subject discussed, forbids any further comment upon the important principles involved in this case. Without saying whether his own opinion is very decidedly made up or not, upon the points discussed, (which would be of little importance to mention, if it were,) the consequence of the principles bearing on the case, the well reasoned opinions, both of the majority and minority of the court, excited the interest and attention of the *215reporter and induced him to submit such suggestions and references as he thought might be acceptable to the profession. One thing is certain, however, that the principles recognised by a majority of the court, in this case, are now a part of the law of the land, and have received the highest legal sanction, of which (perhaps) they are capable in this State. - K.