tillery at some other place in Canton, and for his operations at which place he became indebted in this suit."

This instruction was given. The United States excepted. The jury found for the defendants and judgment was entered accordingly.

In the argument before us it was contended by the Solicitor-General, that the locality where the distillery was intended to be placed, described in the bond, was immaterial, and that the sureties were liable for the defaults of their principal, occurring where the distillery was situated, in all respects as if it had been located at the piace named in the bond. This is the point to be examined. It is the only one to which our attention has been called.

The bond was taken under the Act of July 20, 1868, ch. 186, 15 Stat. at L., 125. Its provisions bearing upon the subject are as fol

lows:

Section 1. "Every proprietor or possessor of a still, distillery or distilling apparatus, shall be jointly and severally liable for the taxes imposed by law on the distilled spirits produced therefrom, and the tax shall be a first lien on the spirits distilled, the distillery used for distilling the same, the stills, vessels, fixtures and the tools therein, on the lot or tract of land whereon the said distillery is situated, together with any building thereon from the time said spirits are distilled until the said tax shall be paid."

ments or other liens during the time in which he shall carry on said business."

Section 8. The bond is not to be approved unless the distiller is the owner in fee, unin cumbered, of the lot or tract of land on which the distillery is situated, or unless he file with the assessor the written consent of the owner of the fee and of any incumbrance, that the premises may be used for the purpose of distilling, spirits subject to the provisions of law, and stipulating that the lien of the United States for taxes and penalties shall have priority over such incumbrance, and that in case of forfeiture of the premises, the title shall vest in the United States discharged from such incumbrance, whatever it may be.

*Section 12 forbids the use of any still, [*655 boiler or other vessel for the purpose of distilling "within six hundred feet of any premises authorized to be used for rectifying," and declares that the offender against this, or either of the other prohibitions contained in this section, shall, on conviction, be fined $1,000 and imprisoned for not less than six months nor more than two years, in the discretion of the court.

These several provisions show the importance attached by the statute to the place as designated in the notice required to be given by the distiller, before commencing business.

Here the bond, it is to be presumed, followed the notice. The designation of the place is made important to the distiller, to his sureties and to Section 6. "Every person engaged or intend- the Government, in several respects. If the ing to be engaged in the business of a distiller place be not designated in the notice the distillor rectifier, shall give notice in writing sub-er is outside of the law and liable to the penalscribed by him to the assessor of the district ties denounced by the 6th section. If it be within which said business is to be carried on, within six hundred feet of premises authorized stating his name and place of residence, and, if to be used for rectifying, he is liable to suffer a company or firm, the name and place of resi- as prescribed in the 8th section. The premises dence of each member thereof, and the place having been specified in the notice, the surety, where such business is to be carried on, and before executing the bond, and the [*656 654*] whether of distilling or rectifying; *and assessor, before taking it, may examine and if such business be carried on in a city, the determine how far, in the event of liability on residence and place of business shall be indi- the part of the principal, the property would cated by the name of the street and the num- be available as security for the Government and ber of the building." In the case of a recti- indemnity for the surety. fier, the notice must state "the precise location of the premises where such business is to be carried on," and that the "establishment is not within 600 feet from the premises of any distillery," etc. In case of change in the location, etc., of a distillery, notice in writing is required to be given to the assessor or his assistant, within twenty-four hours.

Every notice required by this section shall be "in such form and shall contain such additional particulars as the Commissioner of Internal Revenue shall, from time to time, prescribe."

"Any person failing or refusing to give such notice shall pay a penalty of $1.000, and on conviction shall be fined not less than $100 nor more than $2.000; and any person giving a false or fraudulent notice shall, on conviction, in addition to such penalty or fine, be imprisoned not less than six months nor more than two years."

Section 7. This section prescribes the bond to be given. One of the conditions required is that the distiller "Will not suffer the lot or tract of land on which the distillery stands, or any part thereof, or any of the distilling apparatus, to be incumbered by mortgages, judg

If the proposition of the counsel for the United States were sustained, the designation of the place, as in this bond, instead of affording a limitation and a safeguard to the surety, might prove but a delusion and a snare, and subject him to liabilities which he could not have foreseen, and to the hazard of which he would not knowingly have exposed himself. In such cases, the United States having a lien, the surety is entitled to the benefit of it. He might be willing to bind himself where the lien was upon one piece or parcel of property, and unwilling where it was upon another. His ultimate immunity or liability might depend wholly upon the value of the premises. He had the option to assume the risk or not. This element may have controlled the exercise of his election.

Viewing the subject in the light of these considerations, we cannot assent to the view expressed by the counsel for the Government On the contrary, we think this term of the bond is of the essence of the contract. It is hardly less so than the amount of the penalty. defines the place where the liability must arise, the other the maximum of that liability for which the sureties stipulated to be bound. The former can no more be held immaterial than the latter.

One

No distillery having been carried on at the place named, the contract never took effect. The event to which it referred did not occur. There could, consequently, be no liability within the letter or meaning of the contract. It was as if the agreement had been for the good conduct of a clerk while in the service of B., and the clerk never entered his service, but entered into the service of another. Distilling begun and carried on elsewhere was no more within the obligation of the sureties than if it had been begun and carried on there or elsewhere by a person other than Boecker. No other place than that named is, under the circumstances of this case, within the letter, spirit 657*] or meaning of the bond. *The specification has no elasticity. It cannot be made to extend to the locality where the distillery here in question was placed. In Miller v. Stewart, 9 Wheat., 703, this court said: "Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract. To the extent, and in the manner and under the circumstances point-after starting his distillery he changes its loed out in his obligation he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract, and if he does not assent to any variation of it and a variation is made, it is fatal."

To the same effect is Ludlow v. Simond, 2 Cai. Cas., 1. There is no more learned and elaborate case upon the subject.

approved by the assessor. Such a notice and such a bond were given in this case. The bond recited, in the preamble to the condition, the fact that the distiller intended to be engaged in the business of a distiller within the Second Collection District of the State of Maryland, to wit: at the corner of Hudson Street and East Avenue, situate in the Town of Canton, County of Baltimore. Then followed the terms of the condition, namely: that the distiller should in all respects faithfully comply with all the provisions of law, etc., and not suffer the lot on which the distillery stood to be incumbered, etc. Now, the sureties contend that if the distillery is actually established on a different lot from that suggested in the recital, though only across the street, or even the adjoining lot on the same side, they are not bound. It seems to me that it is for them, and not for the Government, to see that the distiller pursues his business on the lot which he gives notice to the assessor that he will use for that purpose. They are the guarantors of his conduct to the Gov ernment, and not the Government to them. If cation, or after giving notice of the location he changes his mind and commences business on another lot, the sureties ought to be bound for the regularity of his conduct. If he should not carry on business in the designated district, but in a different one, subject to the jurisdiction of another assessor, to whom the bond was not given, the result might be different. But if he establishes it in the same district, the sureties ought to be liable. The con

The leading English case is Arlington v. Mer-dition is not that *he shall comply with [*659 ricke, 2 Saund., 403.

These authorities are conclusive of the case before us. It is needless to analyze and discuss them. Others, without number, maintaining the same principle, might be referred to. Many of those most apposite to this case are cited in the argument of the counsel for the defendants in error. The rules of the common law upon the subject are as old as the Year Books. Those rules were, doubtless, borrowed from the earlier Roman jurisprudence, known as the civil law. They obtain throughout the States of our Union. The adjudications everywhere are in substantial harmony.

The question here was not as to the law in the abstract, but as to its application to the facts of the case.

A careful examination has satisfied us that the learned judge upon the trial below instructed the jury correctly.

the law only on that particular lot. That can only be claimed as an inference of law. But does such an inference arise in this case? The fact that the distiller intended to pursue his business on that lot is mentioned, it is true, in accordance with his notice. But this is no part of the substance of the condition; the substance is that he was going to engage in the business of a distiller in that district, and the sureties guarantied his compliance with the law. Where a sheriff or marshal is elected or appointed for a particular term, a bond given for the faithful discharge of his duties relates by implication of law to that term alone; and the sureties are not bound for a subsequent term in case of his re-election or re-appointment. This is so, whether the condition recites the term of office for which the appointment was made or not. This is the reasonable inference from the whole transaction. But, in the case under consideration, the implication of law and the reasonable inference is that the sureties are bound for the conduct of their I dissent from the opinion of the court in principal, though he should change the location this case. It seems to me that it has a tend-of his distillery to any other place within the 658*] ency to cast every burden on the Gov- district. Otherwise the Government is liable ernment and to unduly relieve the sureties of to be subjected to great frauds. It is the duty the distiller from responsibility for his acts. of the sureties, rather than that of the GovernBy the 6th section of the Act of July 20th, 1868, ment officials, to see that no change is made every person intending to be engaged in the without the distiller's pursuing the formalities business of a distiller is to give notice in writ- required by the law. If it is made without ing to the assessor of the district within which those formalities, there would be stronger reasuch business is to be carried on, stating his son for holding that fact of itself as constitutname and place of residence, and the place ing a violation of the bond, than for holding where said business is to be carried on; and that it discharges the sureties from all obligaif in a city, the residence and place of business tion whatever. is to be indicated by the name and number of the street. He is then, by section 7, to exeeute a bond with at least two sureties, to be

The judgment is affirmed.

Mr. Justice Bradley, dissenting:

Mr. Justice Clifford, Mr. Justice Davis and Mr. Justice Strong concur in this opinion.

Doane, Patrick J. Towle and John Roper, partners as J. W. Doane & Co.; commission specifies suit of Doane, Towle, Roper and Raymond, as parties, and dated May 8th, A. D. 1871, out

JOHN W. DOANE, Patrick J. Towle, and
John Roper, Partners, as J. W. Doane &
Co., Piffs. in Err.,
LOCKHART T. GLENN and George O. Tapley. of Weld County.

v.

(See S. C., 21 Wall., 33-36.)

2. Because deposition is in this cause and not in the interpleader, and does not permit interDeposition, objections to, when taken when rogatories to be propounded in behalf of the

waived.

Mr. Justice Swayne delivered the opinion of the court:

This is a writ of error to the Supreme Court 34*] of Colorado Territory. *The plaintiffs in error commenced a suit in the First Judicial District of the Territory for the County of Arrapahoe, against Oliver S. Glenn and Rufus E. Tapley. A writ of attachment was issued in their behalf, and certain personal property described in the sheriff's return was seized. Lockhart T. Glenn and George O. Tapley filed an "interplea," and claimed the property as belonging to them. The plaintiffs replied, denying the truth of the allegation of the interplea and concluding to the country.

claimants.

3. Because there is no authentication of the official character of a notary public.

4. The commission is to take the deposition of James H. Hanna, and deposition taken is that of J. W. Hanna.

Which said objection to the reading of said deposition to the jury, was sustained by the court, and the said court refused to [*35 permit said deposition so to be read; to which ruling of the court in excluding said deposition from the jury, the said plaintiffs by their attorney then and there excepted; and which said deposition is in the words and figures following, to wit: etc.

None of the objections go to the testimony of the witness. All of them relate to defects and irregularities which might have been obviated by retaking the deposition. It does not appear that any notice beforehand was given to the counsel of the plaintiffs that they would be made. In such cases the objection must be noted when the deposition is taken, or be presented by a motion to suppress before the trial is begun. The party taking the deposition is entitled to have the question of its admissibility settled in advance. Good faith and due diligence are required on both sides. When such objections, under the circumstances of this case, are withheld until the trial is in progress, they must be regarded as waived, and the deposition should be admitted in evidence. This is demanded by the interests of justice. It is necessary to prevent surprise and the sacrifice of substantial rights. It subjects the other party to no hardship. All that is exacted of him is proper frankness.

The settled rule of this court is in accordance with these views. York Mfg. Co. v. Cent. R. R. Co. 3 Wall., 113, 18 L. ed., 172; Shutte v. Thompson, 15 Wall., 160, 21 L. ed., 126; Buddicum v. Kirk, 3 Cranch, 293.

The district court erred in excluding the deposition, and the Supreme Court of the [*36 Territory erred as regards this point, in affirming the judgment.

The judgment is reversed, and the case will be remanded with directions to issue venire de

novo.

This proceeding is understood to be according to the laws of the Territory. The issue made between the interpleaders and the plaintiffs was tried by a jury. Upon that trial the plaintiffs offered in evidence the deposition of James W. Hanna, a resident of the City of Chicago. It was taken under a dedimus is sued pursuant to a notice served upon the counsel for the interpleaders. A copy of the interrogatories to be propounded to the witness was served with the notice. It appears that the clerk opened, published and filed the deposition by order of the court. The bill of exceptions contained the following passages: "The plaintiffs then offered to read in evidence the deposition of James W. Hanna, taken May 29, A. D. 1871, before William L. English, Esq., Cook County, Ill. To the reading of which said Kemoval of actions from State Courts-trial

deposition the said interpleading claimants by their attorneys objected, on the grounds:

1. Because the parties in suit are, John W.

AARON B. VANNEVAR et al., Claimants of
Steamboat Eastern Queen, Plffs. in Err.,

v.

BENJAMIN R. BRYANT.

(See S. C., 21 Wall., 41-43.)

pending.

An action under a State Court by a plaintiff, who was a citizen of the State in which the suit was brought, against two defendants, who were citizens NOTE. Depositions in United States Courts, defect and irregularities in, how taken advantage of- NOTE. Jurisdiction of U. S. Circuit Court desee note to Winans v. N. Y. & Erle R. Co., 16 L. ed.pending on parties and residence-see note to 68. Emory v. Greenough, 1 L. ed. U. S. 640.

1

brought, against two defendants, who were cit-N ERROR to the Circuit Court of the Unitizens of other States, and a third who was a ed States for the Southern District of citizen of the same State as the plaintiff, was Ohio. not removable to the circuit court under this