
    Strader, &c, vs Graham.
    Appeal from the Louisville Chancery Court.
    ■Chancery.
    
      Dase 153.
    Depositions having been taken before all the ■proper parties «roese before the Court, were retaken after the proper parties n ere made, in which the defendants refer to & affirm their hist depositions.fleld. that the first depositions might properly be read in connection with theürst.
    
      Depositions. Slaves. Steam boats.
    
    
      October 4.
    
   Chief Justice Marshall

delivered the opinion of the Court.

The facts of this case are sufficiently stated in the opinion rendered when it was formerly in this Court, and reported in 5 B. Monroe, 173. In that opinion the principles applicable to the whole case as then appearing, were carefully considered and fully stated. The case-now presents essentially the same facts, and must be governed by the same principles. A few questions., however, made on the trial after the return of the cause to the Louisville Chancery Court, were not presented when the case was formerly here. We shall proceed briefly to notice such of these as require comment.

1. Armstrong, the master of the boat at the time of the all'edged asportation of Graham’s slaves, having been made a party as directed by this Court, there ivas a general ordei for re-ta'king depositions. In some few of the depositions then re-taken, the witnesses referred to their former depositions, affirming that the statements therein were true, and adopting them as their present deposition, most of which statements were also in substance, reiterated in the second deposition. The Court allowed the former depositions thus referred to, to be read as evidence against the objection of Armstrong, and the propriefy of so doing is now made a question. We are of opinion that as Armstrong had, in these cases, the right and the opportunity of cross examining the witness as to all the statements contained in the deposition referred to, such depositions were properly admitted as evidence against him, and that he was not prejudiced thereby,

The deposition of an obligor in a bond given for the performance of a decree or attaching of a steam boat, or the ¡part owner of such boat in like case, is incompetent evidence fordefendants.

2. The other defendants besides Armstrong, offered his deposition, taken before he was made a party, as evidence in their favor, but being objected to, it was rejected. The same deposition had been suppressed by the Chancellor before the first trial, on the ground that Armstrong had executed the bond by which the boat had been replevied. Upon which this Court, in the former opinion, remarked that “the deposition of Armstrong not having been objected to, should not have been rejected.” The implication is, that if objected to, it should have been rejected. But considering the question as an open one, we are of opinion that the deposition was inadmissible, even if Armstrong had not been made a party, not only because being bound for the performance of the decree, he was interested in the result, but also because the bill sought to make the defendants, the owners of the boat, liable by subjecting the boat to sale foi damages arising from the misconduct or neglect of Armstrong as their agent. If he improperly permitted the slaves to go on board and the owners of the boat were thereby subjected to a decree for damages, he was liable to them for the loss which his act or neglect occasioned, and the decree would be evidence against him of the fact and amount of recovery. If there should be no decree, there would be no loss to them, and no consequent liability on his part. Under these circumstances, the question being as to the misconduct or neglect of the agent, he is an incompetent witness for his principals: Railroad Company vs Kidd, (7 Dana, 251; 3 Starkie on Evidence, 1231-2; 1 Greenleaf’s Evidence, 461-2.) Moreover, Armstrong was directed to be made a defendant, presumably on the ground of interest, and whatever interest he had was not acquired after his deposition had been taken, but existed at the time. The question, therefore, does not depend upon the effect of an after acquired interest, but he was interested, and therefore, incompetent at the time : and his deposition was properly rejected.

3. Every question made on the last trial by instructions asked or given or refused, had been made on the first trial, and being presented by the record as formerly before us, was decided either expressly or in effect by tbe former opinion. With regard to the criterion of damages particularly, and to the liberties which had been allowed to the slaves, and to the effect of their transient visits to Ohio and Indiana, the former opinion was explicit and its principles were slrictly^observed by the Chancellor on the last trial.

The former opinion in this ease does not concede-that if the owner take his slave to a Sta te where slaveryisnottolerated, or permit it to be done but for a transient purpose only, that the slave thereby becomes free ; but upon returning he becomes again a slave, on the contrary, clearly and repeatedly stated that such a consequence from such a fact was not admitted.

There is, therefore, no room for further question in this Court upon this part of the case. Having seen, however, that in another case so much of the opinion formerly rendered in this case as discusses the effect of a transient visit made by master and slave to a State in which slavery is prohibited by the fundamental law, has been supposed to involve the principle or inference, (so far at least as the opinion of the writer was concerned,) that the slave though once free by reason of such visit, becomes a slave again by a voluntary return to Kentucky, we take this opportunity of relieving the opinion from such a misconstruction. The opinion contains no concession, either express or implied, that the slaves in question were ever free, or could properly have become so by being temporarily in a free State with their master or other citizen of this State, having control over them. On the contrary, it is clearly and repeatedly stated, that the Court does not admit that in consequence of such a fact, and by force of the mere genera! prohibition of slavery in the fundamental or declaratory law of the State, which might be thus visited, the relation of master and slave, as existing under the laws of their own State, would be affected. And a question is made even as to the effect to be given here, to the decision of a tribunal in the free State, which upon the appeal of the slave there, should have declared him free.

It is true, the fact that the slaves had voluntarily returned with their master or his representative, was considered of some importance, not as affecting the general question of the effect of the foreign law, but rather as excluding that question from this case, or at least of conclusively relieving the case from the operation of that law. And it was deemed material in a case of this character, that even those jurists who maintained that by an appeal to the foreign law, while within its jurisdiction, the slave, though taken there with his master for a ien>porary purpose, may obtain the benefit of that law, concede that if he voluntarily return with his master to his own country, without such appeal, he is still a slave by its laws.

Duncan for appellants; Robertson, Harlan and PirlU for appellee.

It is to be observed too, that in this case, the law could be judicially pronounced only in reference to the facts of the case of which the voluntary return of the slaves was one. And if any discrimination should be made in the consideration of that opinion, whereby one portion or principle should be ascribed to the Judge who- wrote it, rather than to the Co.urt, (for which, however, there was no ground imfha-t ease,} it would seem more reasonable to ascribe to the Court the decision of the very question presented by the case, including all its- facts, and to the Judge who wrote the opinion the reason given in support of it, or any general discussion relating, to it-.

Perceiving no error in the present record to the prejudice of the appellants, the decree is affirmed.  