ness or want ')f skill in the performance or attempted performance "of the contract, .an action .on the case would lie. But tha complaint is that the defendants made a contract to do certain work which they altogether failed to do; that they' entered upon the work ,but to complete it, and by reason of such .failure the plaintiff was. damaged; and complaint avers special damages, and sets forth somewhat in detail how they arose. It is true that the declaration avers that the contract is set out as mere inducement, and avers that the defendants carelessly and unskillfully failed to perform their .oontract, which it seems to me are immaterial averments;" Stich failure,might have been from carelessness, or it might have been from willfulness; I think it is immaterial which it was if the was broken, and the plaintiff suffered damage thereby. As the cOl,lrt construes thederlaration, the .remedy thereby sought against the defendants is ex c(mtractu,-an action .for the breach of the contract. The demurrers as assigned areovt'rruled, except as to the last ground of demurrer, numbered 0, which is sustained.
"lnre GotJR:pIN, United States .commissiober. ': ". ; I:.' .. , .
L UlIll'l'BD STATEs ComttsstONEBS.....FEES--AFFIDAVITS.,
United States comml,ssioners areen'itlild' fees for tmlwing and flling afliciavits upon which warrants'are issued, wliere suoh aftldavits are by the laws of the state necessary to the issuance of 'the warrants. ' They are ,also· entitleci fees for entering returns on warl,'ants and subprenas. since such returns'arenecessai'y in order to ascertain what the deputy-marshala have done; and what fees they haTe .eil.rDsd.
.'.. . ...' · .. "
They are. also to fees for taking acknOWledgments on recognizances, since such acknowledgments are an eSSential part of the
At Law. W. M. GO'IJ.rdin, per 88.' . John Wingate, Asst.U. S. Dist. Atty. SIMONTON, J. The district attorney, presenting the account ofW.M. 'Gourdin, c()Inmissioner, under act of congress. (18 St. at Large, 333,) has disallowed sundry items: Drawing complaint, 2 folios, 30 cents; oath, 10 cents; fjling, 10 'cents; say 50 cents,-12 in all, $6. Entering return on warrants, and Taking 20 acknowledgments at 26 cents each. Wha.t is called thecompillint in these charges is the sworn affidavit, without which the warrant could not have been issued. That is the ptactice in the state of South Carolina, (Pressley, Law of Mag, 4.98; State v, WimbWJh. 9 8. C. 3,09,) to which commissioners in. this state must conform, (Rev. St. U.S. §'1914.;) and it seernsto be required undQl the fourth amendment to oonstitution of.the United :States, and in
'DANIELS V. CASE.
parte Bnrford, 3 Cranch, 447, andis certainly required by Justice BRADLEY in Re Rule oj Court. 3 Woods, 503. 'fhe: district attorney thinks he
is sustained by the case of Stafford v. U. S., Ct. C1. No.'15,782. The present caSe seems to be taken out ofthat case because such a complaint is required by the laws of South Carolina. The disallowance of the district attorney is not followed, and this item is allowed. "Entering returns on warrants and subprenas." I have examined these. They include the return, the number of miles traveled, and all other expenses incurred bY, the deputy, and are necessary to ascertain what the deputy did and what he ought to get for doing it. The last acknowledgments on recognizances, 25 cents for each items are recognizance. A recognizance is not an ordinary bail-bond. It is a peculiar instrument, upon which execution can be issued when it is estreated. The act of the commissioner is needed to give it this character. It ,must be taken and acknowledged before him, and, if not taken and acknowledged in this way, it is not a recognizance, but an ordinary bond. Heywardv. U. 8., 87 Fed. 764. This item is allowed.
DANIELS 11. CASE
(Oircuit Court, W. D. Missouri., W. D. April., 1891.)
TAXATION-SALE-RECITATION IN DEED-VALIDITY.
Under the charter of Kansas City, c. 6, S 64, presoribing that a tax-deed shall recite that the property was publicly exposed for sale on a certain day "at the sale begun and' publicly' held on the first Monday, * * * the first day on which said real property was advertised for sale, " and tax-deeds to comply substantially with the forms prescribed, a tax-deed IS void which omits the word "publicly" in the clause "at the sale begun and publicly held." Following Sullivan v. Donnell" 90 Mo. 278, 2 S. W. Rep. 264. In ejectment by the purchaser of the tax-deed, parol evidence to show that the sales were in fact begun on the first day advertised, and were "publicly" held, is incompetent.
At Law. Br(}'l1]'n, Clw.pman &: Brown, for plaintiff. Karnes, Holmes &: Kra'lJ1.hoff, for defendants.
PHILIPS, J. This is an action of ejectment to reco\"er possession of lots 1, 2,8, and 4, block B, in resurvey of the City