We concur that the question propounded by the Court of Appeals should be answered in the negative, but we are unable to give full concurrence to the reasoning of other members of the court by which they arrive at this conelu*900sion. At common law the carrier was entitled to receive his freight notwithstanding the goods may liave been damaged in transit. This resulted from the application of the principle that unliquidated damages could not be set off against liquidated demands. But under the practice in this State, at least since the adoption of the first code, the defendant was given the right “to have a deduction from the amount of the plaintiff’s damages for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract,” and such deductions were pleadable “in all actions ex contractu where from any reason the plaintiff under the same contract is in good conscience liable to the defendant.” Code of 1863, §§ 2851, 2853. Subsequently, by the 'act of 1878, the plea of recoupment was enlarged so that if the damages of the defendant exceeded in amount those of the plaintiff, the defendant was allowed to recover the excess. The English rule that in a suit for freight the defendant can not plead damages in reduction of the amount sought to be recovered or have a judgment for the excess, if the damages exceed the freight, has been changed by our statute, and no reason occurs to us why a rule founded solely upon an artificial rule of pleading should be adhered to, when such rule has been abrogated or repudiated in this State. The right of the carrier to retain the goods depends upon his right to claim the freight. If the consignee owes no freight, then the carrier has no right to the possession of the goods. If the damage occasioned in the performance of the contract of transportation equals or exceeds the freight, then the carrier’s lien for freight is lost, and he has no right to the possession of the goods; and an action of trover may be maintained for their recovery, without payment of freight. Missouri Pacific Railway Company v. Peru-Van Zandt Implement Company, 73 Kan. 295 (85 Pac. 408, 87 Pac. 80, 6 L. R. A. (N. S.) 1058, 117 Am. St. R. 468, 9 Am. & Eng. Ann Cases, 790); Dyer v. Grand Trunk R. Co., 42 Vt. 441 (1 Am. R. 350); Moran v. Northern Pacific R. Co., 19 Wash. 266 (53 Pac. 49, 1101); Boggs v. Martin, 13 B. Mon. (Ky.) 239; Cutting v. Grand Trunk R. Co., 13 Allen (Mass.), 381; Miami Powder Company v. Port Royal &c. R. Co., 47 S. C. 324 (25 S. E. 153, 58 Am. St. R. 880); 1 Jones on Liens (2d ed.), § 331. But it does not follow that because the consignee or consignor may recover the goods in an action of trover he is entitled to abandon them to the carrier and *901sue in assumpsit for their value. The right of the consignee to the possession of the goods, without the pa3unent of freight, where the damage equals or exceeds the freight, is one thing; and the right of the consignee to abandon the goods under such circumstances ’and bring assumpsit for their value, based on a breach of the contract of carriage, is another thing. Woodruff v. Zaban, 133 Ga. 24.
We do not think any point actualN decided in Brown, Shipley & Co. v. Clayton, 12 Ga. 564, precludes an action of .trover'for the recovery of the goods without the paiunent of freight where the damage to the goods caused by the carrier equals or exceeds the freight. That case concerned an action between a bailor and his factor, to whom goods had been consigned. The factor claimed credit for the freight which he had paid to the carrier, and the owner of the goods sought to have this claim disallowed because the goods had been damaged by the carrier in transit, contending that the factor was negligent in paying the freight without first adjusting the damage, which was less than the freight; and the ruling of the court was to the' point that the factor was not so negligent, and was entitled to a credit to the extent of the freight which he had paid to the carrier.