plaintiff not being shown to have acted of earth extending some feet from the line upon the same, the owner is not estopped yet to be excavated on the north part of now to make a claim for such damages.

the west boundary of the building site. 7. It does not, however, follow that the The east wall of the Patterson building promise of the owner, though not amount- was flush with the west line of the proing to a contract, nor estopping it to claim posed building for about 60 feet from the damages for delay, had no effect whatever. line of Douglas street, at which point there The provision of the contract respecting was a jog of 7 feet to the west, and from delays which should extend the plaintiff's there to the rear of the lot the east wall time for the completion of the building of the Patterson building was about 7 feet was as follows: "Should the contractor be west of the west line of the lot. It does obstructed or delayed in the prosecution or not appear in the evidence how far below completion of his work by the act, neglect, the surface the foundation of this part of delay, or default of the owner or archi- the Patterson building was carried, but it tect, or any other contractor employed by sufficiently appears that it was very much such owner upon the work, then the time above the grade of the new building, and herein fixed for the completion of the work that the excavation upon this part of the shall be extended for a period equivalent site could not be safely made until this to the time lost by reason of any or all portion of the Patterson building was in of the causes aforesaid. But no such alsome way supported. But for this, the lowance shall be made unless a claim there- work necessary to complete the excavation for is presented in writing to the architect of the lot could have been performed in within twenty-four hours of the occur- ten days or two weeks. In fact, it was rence of such delay. The duration of such extension shall be certified to by the architect." It does not appear that the plaintiff made a claim in writing to the architect for an extension of time in accordance with these provisions, and it is very strenuously insisted that, in the default of having taken such action, he is precluded now from showing that he was delayed by the fault of the owner or other contractors. If it be true, as the district court found (and its finding, as we have seen, must be here sustained), that the owner made this agreement, and the plaintiff, relying upon its promise, neglected to make his claim in writing, we think the owner should be and is estopped to insist upon the provisions of this clause. It would have been an idle act for the plaintiff to ask an extension when the owner had already promised not to insist upon the completion of the build- We think the case should be remanded to ing at the time stipulated. Such a prom- the district court, with instructions that ise naturally lulled the contractor into a a finding be made upon this question only sense of security, and was well calculated upon the evidence already taken, and such to prevent him from taking steps under other evidence as may be produced, and the provisions of the contract quoted. We that the owner be allowed the stipulated therefore conclude that the plaintiff was damages for the delay after deducting such entitled to an extension of the time equal delays as were properly chargeable to its to the period of delay caused by the fail-action or failure to act, and that the judg ure of the owner to have his property in ment be modified if such findings render it condition for the erection of the building.

8. The excavation necessary to prepare the site for the building was nearly completed at the time of the making of the contract in question. There was some earth which had washed in during the winter, and holes for the piers to be dug, and a quantity of earth remaining under a bridge or runway to be removed. It was necessary to excavate a few inches deeper over most of the surface, and there was a bank

not practicable for the plaintiff to install the foundations in this part of the work until long after the time in which the whole was to have been completed. It is true that other portions of the work were carried up, but that the work was done at a disadvantage, and that considerable delay was caused by the failure to have this part of the site in a proper condition to permit the installation of the foundations, is evident. On the other hand, we are not satisfied that all the delay was chargeable to this cause. The district court made no finding as to how much delay was caused by the owner's failure to have the site in proper condition, and how much was owing to other causes for which the owner was not responsible. The evidence does not seem to have been directed to this question.

necessary. It appears that work of this
character cannot properly be executed in
freezing weather, and, if the giving to
plaintiff of such extension as he may be
entitled to should postpone the date of
completion into the period of freezing
weather, then and in such case the period
during which such work could not be safely
prosecuted on account of frost should be
deducted from the period of his delay.
We therefore recommend that the judg

ment of the District Court be reversed, should be remanded, held to bail, or disand the case remanded for further proceed-charged from custody. ings in accordance with this opinion.

9 Enc. Pl. & Pr. 1052, subdiv. b.; Ex parte Hose, 34 Nev. 87, 116 Pac. 417; Ex

Duffie, Epperson, and Good, CC., con- parte Lewis, 34 Nev. 28, 115 Pac. 729.

For the reasons stated in the foregoing have committed the crime charged, and opinion, the judgment of the District Court | subsequently withdrew from its jurisdicis reversed, and the case remanded for fur- tion so that he could not be reached by ther proceedings in accordance with this its criminal process. opinion.

no

As the agreement of separation was in force, there was no abandonment of the wife. Any failure to support her or the son did not occur while petitioner was in the state of Pennsylvania.

sideration, it appears without contradiction, ment or to support her and the son until that on the 27th day of May, 1910, the pe- after he left the state of Pennsylvania, titioner and his wife entered into a written while, according to his testimony and unagreement to live separate and apart from der the written agreement, there was each other, and for the payment by the default on his part for more than a month petitioner of $50 per month in advance for after his departure from that state. the support of his wife and minor son, to the wife, who in addition received the rental of $20 per month, or $15 per month, from a dwelling house; that petitioner made the monthly payments under the agreement to and including the month of April, 1913, and that the last of these payments was made in advance for that month by check drawn by petitioner and dated April 1, 1913; that he has since failed to make the payments, but has contributed a small amount toward the support of the minor son; and that prior to any delinquency in payments or failure to support, he left the state of Pennsylvania on the 29th day of March, 1913, and has not since returned there, and has resided in the state of Nevada since his arrival here on the 3d day of April, 1913.

If, as contended, we are not to consider the undisputed evidence that the petitioner was not delinquent in performing the conditions of his contract, and did not fail to support his wife and child, until more than a month after he left the state of Pennsylvania, and that under the admitted facts no conviction could be obtained under the indictment, and that the holding and taking of the petitioner for trial would result in fruitless expense to the state of Pennsylvania and unnecessary hardship to petitioner, the question remains whether he is a fugitive from justice, subject to exThe indictment was found upon the tes- tradition, when it appears beyond dispute timony of the wife of the petitioner. In that he was not in the state of Pennsylher detailed sworn "statement of circum- vania at the time he is alleged by the stances of aggravation," accompanying the indictment to have committed the misderequisition papers, she states, among other meanor there. A person while in one state things, that petitioner separated himself may be guilty of the commission of a crime from her and his children on the 1st day in another state, when he is operating with of April, 1910, without reasonable cause, an agent or accessory there, as in Re Cook and has since that day refused to live with (C. C.) 49 Fed. 833, in which the accused or make his home with her; that on or was convicted of receiving deposits in an about the 30th day of March, 1913, the insolvent bank mostly owned by him in the petitioner closed his office in the city of state of Wisconsin while he was in Chicago; Pittsburg, where he was practising as a and the case of State v. Chapman, 6 Nev. specialist on the treatment of the eye, ear, 320, in which it was held that one of the nose, and throat for a number of years, accused persons who went to the state of and gave his accounts into the hands of a California, and from there telegraphed his collection agency, and absolutely discon- accomplices in the robbery when the treastinued his business in the city of Pitts-ure would be shipped, was properly conburg; and that ever since March 30, 1913, victed as an accessory before the fact in petitioner has wilfully neglected to maintain her and their son, and that they are wholly dependent on their earnings for adequate support, aside from the income of about $15 monthly rental from a piece of property belonging to her.

this state. There is no principle of the law relating to agency or accessory by which the petitioner can be held. He did not, with the assistance of any other person in Pennsylvania, commit the offense charged after he came to Nevada. His acts in selling his furniture and placing his accounts with a collection agency before he left the state of Pennsylvania did not constitute or result in any crime.

In this proceeding disputed facts are not regarded as in any way controlling, and if these statements made in her affidavit may be considered as contradicting the direct evidence of the petitioner that he drew It has been held often that the court his check on the 27th day of March, 1913, may hear testimony and discharge a perdated the 1st day of April, 1913, for the son held under a warrant for extradition, payment in advance for April, according if the undisputed facts justify his release to the agreement for supporting her and or show that he is not a fugitive from justhe boy, which has been introduced in evi- tice. Eureka County Bank Habeas Corpus dence, nevertheless the "statement of cir- Cases, 35 Nev. 80, 126 Pac. 655, 129 Pac. cumstances of aggravation" accompanying 308.

the papers does not show that there was In habeas corpus proceedings before the any failure on his part to keep the agree-circuit court of the United States for the

district of Maryland, in Bruce v. Rayner, He does not fail in duty if he makes it a

62 C. C. A. 501, 124 Fed. 481, under an indictment for bigamy alleged to have been committed more than two years before the finding of the indictment in a state in which that offense is barred within two years unless the accused flees from justice, the petitioner was allowed to prove that he remained in that state without being concealed for more than two years after the date of the alleged offense, and it was held that such evidence would not go to any matter of defense, but tended to prove that the petitioner was not a fugitive from justice.

condition precedent to the surrender of the accused, that it be shown to him, by competent proof, that the accused is in fact a fugitive from the justice of the demanding state."

In Ex parte Spencer, 34 Nev. 240, 117 Pac. 1, we heard testimony and discharged the petitioner because it appeared that he was not in the state of Illinois at the time he was alleged to have committed the offense there.

a resident of one of the counties of this state may not be taken for trial to another county in which he is charged with crime, when the undisputed evidence shows that he was not in, and did not commit any offense in, the county in which he is accused.

In Ex parte Hose, 34 Nev. 91, 116 Pac. 417, we ordered petitioner surrendered to the authorities of the state of PennsylIn Ex parte Reggel, 114 U. S. 651, 29 L. vania under an information charging him ed. 253, 5 Sup. Ct. Rep. 1153, 5 Am. Crim. with the crime of desertion by separating Rep. 218, the court said: "The only ques- himself from his wife and minor child. We tion remaining to be considered relates to held that the warrant for the arrest and the alleged want of competent evidence return of the petitioner in that case to anbefore the governor of Utah at the time he swer for the crime of desertion was not obissued the warrant of arrest, to prove that jectionable as failing to set out an offense the appellant was a fugitive from the jus-known to the laws of that state. tice of Pennsylvania. Undoubtedly the act We have held that by lack of jurisdiction of Congress did not impose upon the executive authority of the territory the duty of surrendering the appellant, unless it was made to appear, in some proper way, that he was a fugitive from justice. In other words, the appellant was entitled, under the act of Congress, to insist upon proof that he was within the demanding We have the highest regard for our great state at the time he is alleged to have com- sister state of Pennsylvania, and we do not mitted the crime charged, and subsequently wish to obstruct the enforcement of her withdrew from her jurisdiction, so that he laws or the administration of justice in could not be reached by her criminal proc- any commonwealth. We desire to show ess. The statute, it is to be observed, does every consideration for warrants and procnot prescribe the character of such proof; ess issued on her behalf which we would but that the executive authority of the give or desire to have given to our own. territory was not required, by the act of We doubt whether the petitioner would Congress, to cause the arrest of appellant have been indicted for desertion if conand his delivery to the agent appointed trolling facts omitted from the "statement by the governor of Pennsylvania, without of circumstances of aggravation," such as proof of the fact that he was a fugitive that the petitioner and his wife were livfrom justice, is, in our judgment, clearing apart by written agreement, and that from the language of that act. Any other he did not fail to keep that contract while interpretation would lead to the conclusion in the state of Pennsylvania, had been that the mere requisition by the executive of the demanding state, accompanied by the copy of an indictment or an affidavit before a magistrate, certified by him to be authentic, charging the accused with crime committed within her limits, imposes upon the executive of the state or territory where the accused is found, the duty of surrendering him, although he may be satisfied, from incontestable proof, that the accused had in fact never been in the demanding state, and therefore could not be said to have fled from its justice. Upon the executive of the state in which the accused is found In view of the undisputed facts indicated, rests the responsibility of determining, in we do not feel that it would be consistent some legal mode, whether he is a fugitive with justice or the liberty guaranteed to from the justice of the demanding state. the citizen by the Constitution, to allow

made known to her authorities, and we do not assume that it will longer be desired to extradite or prosecute the petitioner when they become aware of the facts presented to this court, indicating that he was not guilty of the crime of desertion nor of any offense at the time alleged in the indictment nor while residing in that state. We feel assured that the state of Pennsylvania does not wish to proceed against any person when it becomes apparent that he is not guilty of the offense with which he has been charged.

the petitioner to be taken to Pennsylvania, trust belongs to the life tenant or the refor trial, and we do not believe that the maindermen, the court must look into the rights of that state will be violated or her facts and circumstances and nature of the best interests be otherwise than subserved transaction, and determine the nature of by the release of the petitioner. the dividend and the rights of the contend

It appearing to the court that the petitioner is not a fugitive from justice, it is ordered that he be discharged.

This note is supplementary to notes on the same subject appended to Holbrook v. Holbrook, 12 L.R.A. (N.S.) 768, and Newport Trust Co. v. Van Rensselaer, 35 L.R.A. (N.S.) 563.

ing parties according to justice and equity.

Same

-

fund.

preservation of corpus of trust

2. Ordinary dividends on corporate stock held in trust belong to the life beneficiary regardless of the time when the surplus out of which they are payable was accumulated, and extraordinary dividends payable from accumulated earnings of the company, whether in stock or cash, belong to the life beneficiary unless they intrench in whole or in part upon the capital of the trust fund as created or invested, in which case they should be returned to the capital, or apportioned between life tenant and remainderman in such a way as to preserve the integrity of the trust fund.

apportionment between life

tenant and remainderman.

3. So much of a stock dividend declared by a corporation, a part of whose stock is held in trust for life tenant and remaindertrary intention. In Re Affleck, 83 Misc. 659, 146 N. Y. Supp. 835, following the OSBORNE CASE, and Re Tod, 147 N. Y. Supp. 161, it is recognized that the intention of the testator so far as it can be gathered from the will must control.

And in Foard v. Safe Deposit & T. Co. Md., 89 Atl. 724, the court recognizes that the intention gathered from the will These notes are confined to cases where or instrument creating the trust is to conthere has been a declaration of a dividend trol, although in that case there was no or other distribution by the corporation, indication of an intention contrary to the and do not include cases like Guthrie v. general rule prevailing in that state, which Akers, 157 Ky. 649, 163 S. W. 1117, in- was therefore applied. volving the respective rights of life tenant And see Re Wells, Wis. 144 N. and remainderman where there has been an W. 174, infra, where the court gave effect enhancement in the value of corporate to the expressed intention of the testastock held by the trust, owing to the ac- tor. cumulation of dividends or otherwise, but without any declaration of dividends or Opposing other distribution by the corporation. Intention of testator or creator of the trust. The importance of the intention manifested by the will or other instrument by which the right to the income is for the time being severed from the corpus, in determining the respective rights of the life tenant and remainderman, has received additional recognition in the cases decided since the earlier notes.

rules, generally-apportionment with respect to time.

Since the note in 35 L.R.A. (N.S.) 563, on this subject, the New York court of appeals has adopted the Pennsylvania rule, with its distinctive feature of apportionment or division as between corpus and income, in the event that an extraordinary dividend, whether stock or cash, though payable from earnings, intrenches in whole or in part upon the capital of the trust fund as received from the testator or It was declared in Bryan v. Aikin, Del. maker of the trust, or invested in the 45 L.R.A. (N.S.) 477, 86 Atl. 674, that stock. That court accordingly abandons the intention of the testator must be car- the rule designated in the earlier notes ried out so far as it can be under the law. as the "New York and Kentucky" rule,— So, it will be noted that the majority but which must now be designated as the opinion in RE OSBORNE attempts to dis- Kentucky rule,-the distinctive feature of tinguish that case from the earlier New which, as distinguished from the PennsylYork cases, because of differences in the vania rule, is the refusal to apply the prininstruments bearing upon the intention of ciple of apportionment or division when the creator of the trusts; and concedes that an extraordinary dividend is declared from the rule adopted by it is subject to ex- earnings past or present. This change of ception if the instrument manifests a con-position was foreshadowed in the case Re