#### Gardner and Devereux vs. Smallwood.

VpHE defendant was owner of a vessel, bound to NVw-Yerk-,. — and took in freight, part of a load belonging to'the complain., ants, for which they gave him the full price. The captain stow, ad part in, the hold, and part on deck, as was contended. The cargo, as. well in the hold aa on deck, was injured by a surx.

Per cwriaj?j.

Ta!r.ing a full price and stowing upon deck, will subject the owner of the vessel to pay damages, if what is pl-.o. d on deck be thereby lost or damaged ; but if that did not occasion the loss, he will be no more liable for damage to. that pact of the cargo than to the rest of it.

Vide Nbw-York Term Reports, 43.- — Goods shipped on deck* the shipper paying one half freight, if ejected ir. a storm, shad not haye contribution from the goods in the hold, and the owner of the vessel is not liable.

N. 15. In the above case, the owner of the ship, the defendant, offered the captain as a witness to prove the loss to have been occasioned by distress of weather, and not by any neglect on his. part; but the court would not receive him till releassd by the defendant. The court said it is not like the case of a shopkeeper’s servant becoming a witness.