The opinion of the Court was delivered by

Mr. Justice Jones.

This action, commenced in 1889, was first tried in 1891 and resulted in a verdict for the plaintiff for $860. On appeal, this verdict was set aside and a new trial ordered. 38 S. C., 78. The case then came on to be heard before Judge Benet and a jury at November term, 1895. The plaintiff was nonsuited, and this appeal is from the order of nonsuit.

The complaint alleges two causes of action. The first cause is for damages, $860, the full value of 400 kegs of powder, which defendant, as a common carrier, contracted with plaintiff to deliver to a consignee at Greenville, S. C., but was so negligent therein, that said powder was wholly lost to plaintiff; also for $100 damages additional for delay and having to furnish other goods by reason of defendant’s said negligence. The second cause of action was for the delivery of 400 kegs of powder and for $430 damages for the negligent transportation thereof. It is conceded that $137 is the amount of the freight charges for the transportation of the goods. Judge Benet, in his remarks granting the nonsuit, concedes that there was some evidence tending to show that the amount of damages exceeded the amount due for freight. The remarks of his Honor granting the nonsuit should be incorporated in the report of the case, together with appellant’s exceptions.

1 The principal question in this case is whether a consignee or freighter must first pay the freight charges before he has any right to sue the common carrier for damages to. the goods, or for the delivery of the goods and for *330damages thereto, when the damages equal or exceed the freight. The order of nonsuit is. based on the affirmative of this proposition. We think, .upon reason and authority, that the nonsuit cannot be sustained. There is no doubt, that under our Code, sec. 171,- in an action by the carrier for the freight, the freighter may set off or counterclaim any loss or damage he may have sustained to his goods by the negligence of the carrier in the transportation or delivery. Under the old English practice this was not allowed, but the freighter was compelled to resort to a cross-action. Bornman v. Tooke, 1 Camp. Rep., 377; Sheilds v. Davis, 6 Taun. Rep., 65. But this doctrine has been repudiated in America. It seems that in England now, under a comparatively recent statute, such a set-off is allowed in an action for the freight. It is stated in vol. 8, p. 977, of the A. & E. Enc. Law, that “in the United States it is well settled that if the goods are damaged in a manner for which the carrier is liable, the owner may deduct the amount of injury from the freight, or he may recoup the amount of damage when sited for the freight.” In Redfield on Railways, vol. 2, p. 188, it is stated in the text: “If the goods be damaged in a manner for which the carrier is liable, the owner may deduct the amount of injury from the freight,” and in a note on the same page it is said: “The right of the owner of the goods to insist on any damage done to the goods, for which the carrier is liable, by way of recoupment or deduction from the freight, is well established in this country, and is a most elementary principle, as applicable to analogous cases.” Our case of Ewart v. Kerr, Rice, 203, was one of the pioneers on this line, and the Court’s wisdom is being more and more vindicated. The freighter’s right to set off his damages against the freight, is the first logical step in the solution of the question. Undoubtedly, the carrier has a lien on the goods, for the freight due upon the performance of its contract. In Ewart v. Kerr, supra, Judge O’Neall said: “The lien of the carrier is made exactly equal to his remedy by action.” Thirty years later the Ver*331mont Supreme Court, in Dyer v. Railway Company, 42 Vt., 441 (Am. Rep.; vol. 1, p. 350), said: “The carrier’s lien is, of course, only coextensive with his right to claim and recover freight.” In the last case above, the Supreme Court of Vermont said: “It is fundamental in the law, that the right of the carrier to have his freight results from the performance on his part of the contract, in virtue of which he undertakes and proceeds in the carriage of the property. If they fail to carry and have ready for delivery, they could not maintain a claim for freight. If in the carriage they should subject themselves to liability for damage to the consignee in respect to the property carried, that would disentitle, to the extent of such liability, to demand and recover freight. And if damage should exceed the amount of the freight to which they would otherwise be entitled, of course, they would not be entitled to demand and recover anything for the carriage of the property. Such seems to be the result of unquestioned principles and of the decided cases bearing upon the subject.” This case distinctly holds, that where the carrier by delay in transporting and delivering goods has injured the consignee to an amount equal to the charge for freight, that the carrier’s lien ceases, and the consignee may maintain replevin for the goods without paying or tendering the freight. In Am. & Eng. Enc. Law, vol. 8, p. 969, it is laid down that the carrier’s lien is coextensive with its right to recover freight; and, same volume, p. 977, if the damage equal the freight, the carrier’s lien is gone — citing our case of Ewart v. Kerr, supra, and the Vermont case supra, and other cases. Ewart v. Kerr, though decided in 1839 by a divided Court, was again before the Court in 1840, and the doctrine announced in the former decision was reaffirmed, 2 McM., 143. This case expressly rules that the carrier’s lien for freight is only coextensive with h-is legal right of action for freight, and may be defeated where the damage done to the goods, by the fault of the carrier, equals or exceeds the freight, that in such case the freighter may maintain trover against the carrier for the goods detained under *332the supposed lien for freight. This case has never been expressly overruled, but it is argued that this Court, in Miami Powder Co. v. Port Royal and Western Carolina Railway Co., 38 S. C., 78, announced principles in conflict with it; Mr. Justice Pope, delivering the opinion in this case, said, after stating plaintiff’s contention: “This Court is relieved of an extended consideration of these propositions of law, because this precise point was considered by the Court of Appeals years ago, in the case of Ewart v. Kerr, Rice, 203, 2 McMull., 141, and in that case it was decided by a divided Court, that if the property of plaintiff was damaged, while in the care of the common carrier, to a greater extent than the bill of freight, the lien of the latter was extinguished, and the consignee not only had the right to demand the property of the carrier without payment of freight charges, but. that such retention by the common carrier after the •demand made, amounted to a conversion, and that an action of trover would lie. It must be observed, that in order for the principle established in Ewart v. Kerr, supra, to apply, the damage to the property, while in the hands of the common carrier, must be equal to or greater than the freight charges. There is no evidence establishing this fact in the case at bar, and the charge of the Circuit Judge, in response to the request.to charge of the defendant, appellant, failed to place this essential element before the jury.” It is obvious from the above quotation that the Court did not only not overrule, but distinctly reaffirmed the doctrine of Ewart v. Kerr. It is true, and without attempting to explain by hair-splitting distinctions, we frankly confess that there follow the above quotation expressions that may mislead as to the opinion of the Court concerning Ewart v. Kerr as authority. These expressions, quoted as tending to impeach the doctrine established in Ewart v. Kerr, must be taken, and were meant to be taken, as words of caution merely, in ■view of the practical difficulties in the way of establishing the facts necessary to be established in the application of that doctrine. As a general rule, it is wisest and safest for *333the freighter to pay the freight and then sue for damages, since the possession of the goods by the consignee would earliest put the goods to their designed use, would tend to diminish the injury arising from the detention for that use, and especially would afford the consignee better means of ascertaining the amount of damage already done; but this is a rule of caution and not a rule of law. The case of Shaw & Austin v. S. C. R. R. Co., 5 Rich., 462, decides what is the rule of measurement of damages in a case where the goods in the carrier’s possession are not injured in quality, but deficient simply in quantity. In this case ten barrels of molasses were shipped to the consignee in Camden, who received eight of the barrels, and declined to receive the other two, because some thirty gallons, worth $8.40, had leaked out. The Court decided under these circumstances that the owner could not abandon the two barrels, and recover their entire value; that he could only recover the price at the place of delivery of the goods actually lost. The value of the goods actually lost being only $8.40, the case was dismissed for want of jurisdiction, not because the owner refused to receive the goods on tender by the carrier. We have no doubt that if the damages proven had been an amount within the jurisdiction of the Court, recovery would have been allowed for that amount. In the case of Nettles v. Railroad Co.. 7 Rich., 190, there is nothing inconsistent with the doctrine of Ewart v. Kerr. This case was a suit for $120 damages for non-delivery, within a reasonable time, of two cases of wool hats, the original cost of which was $90, upon which plaintiff proved he could have realized a profit of $30. The goods ought to have been delivered in May, whereas they were tendered in September. The jury were told by Judge O’Neall that the plaintiff ought to have received them on tender in September, and claimed damages which he had sustained for their non-delivery in time. The jury found a verdict for $100. The Appeal Court said: “When they (the goods) were tendered to him, he should have accepted them, and thereby the extreme measure of *334damages would have been reduced by deduction therefrom of the value of the goods according to their condition'at the time and place of tender;” and further said: “it would have been more satisfactory, if by accepting the goods the plaintiff had been enabled to show e'xactly the deterioration they had sustained.” But it is not intimated in either of the cases last mentioned that payment of the freight and receipt of the goods is essential to maintain an action by the owner for damages thereto by fault of the carrier. On the contrary, so far as the Nettles case shows, no freight was tendered by him for the goods, and he refused the goods when tendered apparently without demand for freight, yet the verdict was sustained. If it had been a rule of law for the freighter to first pay the freight and receive the goods before suing for damages, it is impossible that the verdict in this case could have been sustained. The title to the goods in the hands of the carrier is in the freighter or consignee, and it follows that for damage to that property by fault of the carrier, the owner may sue the carrier for damages, even though the property be held by the carrier for the payment of freight thereon, when the damages equal or exceed the freight, in which case the freight charges may go to cancel or diminish the damages. When the damage equals or exceeds the freight, the carrier’s lien for freight is gone, and the owner’s right of possession of his property is complete, and he may maintain an action of claim and delivery for the property and for damage. The carrier thus loses no right; he either holds the goods under his claim for freight or he is protected by the bond given by the plaintiff for the return of the property, in the event he fails in his action; while, on the other hand, nothing would protect the freighter against his loss in the event of insolvency of the carrier, if the freighter were compelled first to pay freight before suing for damages. It follows, from these conclusions, that the Circuit Court erred in granting the.nonsuit on either or both causes of action.

*3352 *334We think, also, there was error in refusing to allow evi*335dence as to the condition of the powder, some considerable length of time after its arrival in Greenville. The evidence was competent for whatever it was worth, on the question of damages sustained at the time the powder was tendered by the carrier upon condition of payment of freight. Whether the jury could infer what was the condition of the powder at that time, by its condition at a later time, would depend upon the facts and circumstances of the case. The sufficiency of the evidence was wholly for the jury. It is clear that it would be competent for the defendant to exhibit to the jury the powder at any time of trial for the purpose of showing that it was not damaged then, from which the jury could infer that necessarily it was not damaged at the time of tender. For a like reason, the plaintiffs may show the condition of the powder at any time before trial, as a means, however weak may be the force of the evidence, of showing its condition at the time of tender. Besides, if there is evidence tending to show that the powder was damaged at the time of tender, to an amount equal to or exceeding the freight, then it becomes relevant, in an action for claim and delivery and for damages, to show the condition of the powder at any time before judgment; because, if the damage at the time of tender exceeded the freight, the detention of the goods by the carrier was unlawful, and damage resulting from that unlawful detention becomes relevant.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court for a new trial.