Dredging Company hired another dredge in the vicinity of Petersburg, putting it on this emergency work, and, their orange-peel bucket dredge having finished the embankment work, it was also put to work on this emergency contract; this emergency work not having been completed when the contractors' own suction dredge arrived, it, too, was placed at work on the emergency contract, and was not taken to the diversion channel until this emergency contract was completed. The emergency contract was finished August 24, 1905. Between this last-mentioned date and the 4th of September, 1905, the contractors' suction dredge was moved into position on the diversion cut, and commenced work on the latter cut on the 5th of September, 1905. "6. The delay in beginning work in the diversion channel, where the right of way had been secured before the contract with the Atlantic Dredging Company was made, seems to have been due entirely to the failure of this company to bring its suction dredge to the work, and not to have been caused by any fault or failure of the United States to secure title to land, or otherwise." The work was completed as follows: Section C completed October 8, 1908. Section D, except a small area at the extreme lower end, which the contractor was permitted to leave in order to hold the water and float his dredge, April 24, 1907. Section D finally cut through and contract finished March 25, 1909. Railroad bridge completed November 19, 1907. Initial cut, section A, completed July 15, 1908. Dam, as modified by supplemental contract of August 14, 1908, completed September 1, 1908. The contractor lost fifty-eight days on account of rain, snow, ice, and freshets, for which the Chief of Engineers has sanctioned the remission of the expenses of inspection for an equivalent time. There was nothing to prevent the contractor from doing the dredging required to be done on sections C and D before the work on the railroad embankment and piers to the bridge was done. A voucher has been prepared showing expenses of inspection and superintendence on the whole work from October 3, 1906, to March 31, 1909, all of which have been deducted. It is estimated that one-half of the expenses of inspection and superintendence between October 3, 1906, and November 19, 1907, was incurred in connection with the railroad bridge, $1,089.83, and it is proposed to remit this amount, and pay the sum to the contractor. The facts in this case show clearly that a part of the delay in the completion of the work provided for in this contract. was due to the mutual default of both the contractor and the Government. This fact raises two questions, viz: First. Can the expenses of inspection and superintendence be apportioned so as to charge the contractor with the same on such part of the work as might have been completed within the original time fixed in the contract and relieve him of said expenses on the part of the work that was delayed by the default of the Government, the contractor and the Government being in default at the same time? Second. Can the delay in the completion of the whole work be apportioned so as to charge the contractor with all expenses of inspection and superintendence for such delay in the completion of the whole work as was wholly due to his default? The award in this case was for the entire work. The entire work was to be completed by October 3, 1906. All expenses of inspection and superintendence due to the delay was to be charged to the contractor. The contract furnished. no rule for apportioning them. It does not require one portion of the work to be completed before another or independently of another, although work on some parts might be prosecuted independently of work on other parts. The contract provided no fixed sequence for doing the work either as to time or order. If the contractor was delaying the work on a part on which it might prosecute it and the Government was at the same time preventing it from prosecuting work on a part that it was ready to proceed with, the consequent delay in the whole. work would be the result of a mutual breach. In such case the courts "will not attempt to apportion the delays where the causes thereof have been mutual." (Jefferson Hotel Co. v. Brumbaugh, 168 Fed. Rep., 867, 875; Vilter Mfg. Co. v. Tygart's Valley Brewing Co., 168 Fed. Rep., 1002, 1005.) When, however, the causes of any particular delay may be determined and fixed as chargeable wholly to one or the other of the parties the delays will be apportioned and the time for completion arrived at by such apportionment. (United States v. Bethlehem Steel Co., 205 U. S., 105, 121; see also McGowan v. American Tan Bark Co., 121 U. S., 575, 600; Morse Dry Dock and Repair Co. v. Seaboard Transprn. Co., 161 Fed. Rep., 99, 101.) The failure of the United States to obtain title to the land to which the railroad embankment was to be removed and the piers for the bridge built did not prevent the contractors from doing the work in sections C and D. It did, however, prevent the doing of any of the embankment and bridge work, and other work dependent thereon, until July 16, 1906. The delay so occasioned operated to extend the time for completion of the whole work for such time as is equivalent to the delay occasioned by reason of this breach on the part of the United States. (McGowan v. American Tan Bark Co., supra, and Morse Dry Dock and Repair Co. v. Seaboard Transprn. Co., supra.) In the case of McGowan v. American Tan Bark Co., the contract bound the defendants to supply certain machinery and set it upon the boat within sixty days from June 23, 1881. The boat was not ready to receive it until November, 1881. The defendants claimed that this operated to eliminate the element of a fixed time and gave them a reasonable time after the boat was ready. The court below instructed the jury that if the boat was subsequently made ready and the defendants proceeded under the contract "they were bound to complete it within the same length of time contemplated by the original agreement, and such additional time as may have been lost in the prosecution of the work, occasioned by * * ** delay in the construction of the boat." The Supreme Court held that there was no error in this charge, and that the defendants became liable for damages for a failure to complete the work under the contract as "thus extended in time." The court in the case of Morse Dry Dock and Repair Company v. Seaboard Transprn. Co., applied the same principle. The default of the United States in obtaining title, under the principles of the decisions cited, operated to extend the time for the completion of the whole contract work for a sufficient period after October 3, 1906, to enable the contractor to do the railroad embankment and pier work, and such work as was dependent thereon if it had been diligently prosecuted after July 16, 1906. You should therefore determine what would have been sufficient time in which to do this part of the work after October 3, 1906, if it had been diligently prosecuted after July 16, 1906, and allow the contractor such time for the completion of the whole work without cost of inspection and superintendence. In addition to this, you would be authorized to remit the expenses of inspection and superintendence for such time as was lost by abnormal force and violence of the elements. After the date thus arrived at for completion all expenses of inspection and superintendence would be chargeable to the contractor. The contractor assumed the risk as to underlying soil, and no allowance of time should be made because rock was found at a less depth than expected. This decision is not in conflict with my decision of September 3, 1907 (42 MS. Comp. Dec., 778), for the reason that the facts in that case were such that the inspection charges might have been apportioned and segregated so as to have become applicable to the various sections of the work as delivered to the contractor, and, further, the failure to complete one part would delay him commencing another. In this case the contractor could have prosecuted the work on the embankment and bridge and on sections C and D at the same time. The failure to do the work on sections C and D did not necessarily delay the work on the bridge. The contractor would, therefore, be under no obligation to complete these sections before he was required to complete the embankment and bridge work. Anything, therefore, that would operate to extend the time as to the performance of a part of the work would operate to extend it as to the whole. When the delay caused by the Government has been determined in accordance with this decision, the expenses of inspection and superintendence heretofore deducted for such period of delay may be paid to the contractor, together with the deduction for such period as may be allowed for delay caused by abnormal force and violence of the elements. FEES AND EXPENSES OF A FIELD DEPUTY MARSHAL NOT ALLOWED WHILE TAKING A DEFENDANT BEFORE AN OFFICER HAVING NO JURISDICTION OVER THE OFFENSE CHARGED. A notary public in the State of West Virginia is not a "judicial officer" within the meaning of the act of August 18, 1894 (28 Stat., 416), and has no jurisdiction or authority to conduct a hearing, take bail for trial, or discharge a defendant on bond for appearance before a United States commissioner. A field deputy marshal who takes a defendant charged with violating a section of the Revised Statutes of the United States before a notary public instead of the nearest United States commissioner, or the nearest judicial officer having jurisdiction, is not entitled to fees and expenses. Comptroller Tracewell to F. H. Tyree, United States marshal, October 6, 1909: I am in receipt of your letter of August 20, 1909, as follows: "There has been presented to me for payment by Field Deputy Marshal W. C. Summers, with headquarters at Charleston, W. Va., an account for fees and expenses in the case of United States v. Walter McCoy for violation of section 3242, a copy of which is herewith inclosed for your perusal, and with the request that you render an advance decision as to whether or not the deputy is entitled to expenses and his proportion of fees charged. "The facts in the case are as follows: The deputy, with a warrant for the arrest of Walter McCoy, traveled from his headquarters at Charleston to Hookersville, a distance of 78 miles, a greater part of the travel having been made on horseback. The arrest was made and the defendant desired to give bond for his appearance for a hearing before United States Commissioner Thayer at Charleston at a later date. The nearest commissioner from Hookersville is at Sutton, Braxton County, a distance of 30 miles by wagon road; the next nearest commissioner is at Montgomery, a distance of 51 miles. The deputy, claiming that he wanted to avoid the trouble of transporting the prisoner across a rough country to Sutton, took the prisoner before Owen G. Robinson, a notary public at Hookersville, who released the prisoner on a temporary bond. Finding no paragraph in the instructions or section in the Revised Statutes of the United States which gives a notary public the authority to commit or release on bond an offender against the laws of the United States, we informed the deputy that his claim for fees and expenses would stand suspended, and asked him to cite authority giving a notary public power to release a prisoner on |