COMPLAINT― PLEADING. STATE V. BEATON. March 14, 1887. A complaint charged the defendant with committing the acts complained of "on sundry and divers days, and times between" September 23, 1885, and September 30, 1885. Held, that the averment of time was not sufficient. Roswell S. Partridge, county attorney, for State. Hilton & Huston, for defendant. WALTON, J. Neither a complaint nor an indictment for a criminal offense is sufficient in law, unless it states the day, as well as the month and year, on which the supposed offense was committed. In this particular, the complaint in this case is fatally defective. It avers that on sundry and divers days, and times between the 23d day of September, A. D. 1885, and the 30th day of September, A. D. 1885," the defendant did the acts complained of. But it does not state any particular day on which any one of the acts named was committed, such an averment of time is not sufficient. State v. Baker, 34 Me. 52; State v. Hanson, 39 id. 337, and authorities there cited. Exceptions sustained. Complaint quashed. PETERS, Ch. J., VIRGIN, LIBBEY, EMERY and HASKELL, JJ., concurred. The personal property of a mutual fire insurance company, in excess of the amount required to pay all legal liabilities, vests in the State upon dissolution of the company. Walter L. Dane, for plaintiff. R. P. Tapley, for corporators. Bourne & Son, for policy-holders. WALTON, J. The Kennebunk Mutual Fire Insurance Company was incorporated in 1856. It has issued no policies since 1877. In 1884, its last policy having expired, the company voted to close up its affairs and to do no more business. A decree has been obtained at nisi prius dissolving the corporation, from which no appeal has been taken or claimed; and the only question before the law court is to determine what shall be done with the assets of the company. Our statutes contain ample provisions for the disposition of the assets of stock companies. Rev. Stat., chap. 46, §§ 25, 26, 27, 54. But this is a mutual company and has no stockholders; and the provisions cited do not apply. According to the old settled law of the land, says Chancellor KENT, upon the civil death of a corporation, when there is no special statute to the contrary, all its real estate reverts to the grantors and their heirs, and all its personal estate vests in the people. 2 Kent (2d ed.), 385-6. To the same effect is Angell & Ames Corp., chap. 22, § 6 (2d ed.). But it is said that in this class of cases the corporators named in the act of incorporation should be regarded as stockholders. They are not stockholders; and to hold that they are would be a fiction; and fictions are not favored, and are never resorted to except to work out some strong and inherent equity; and there is no such equity in favor of the corporators of a mutual insurance company. They contribute nothing toward its assets, and we think it would be against public policy to allow them to have a pecuniary interest in them. Such an interest would inevitably tend to create a temptation to fix the rates of insurance higher than would be necessary to meet losses; and then, when a surplus had been thus obtained, to divide it among themselves, and thus reap a profit from a business in which they had invested no capital and had taken no risks; and this at the expense of the policy-holders. We think there is a much stronger equity in favor of the former policy-holders, whose money has contributed to produce the assets. But we do not think they can be regarded as stockholders after their policies have expired and their premium notes have been canceled or given up to them. They have then received in full the benefits for which they contracted, and are no longer members of the company; and to distrib ute among them a small amount of assets, and to determine what each former policy-holder's share ought in equity to be, would be attended with difficulties and an amount of labor which the end would not justify. When a man dies leaving no wife or kindred, his property descends to the State. And when a corporation, which, like a mutual insurance company, has no stockholders, ceases to exist, we are not prepared to say that the rule of the common law, which gives its surplus assets to the State, is not a wise one. But it is said that unless the corporators can be regarded as stockholders the court has no authority to decree a dissolution of the corporation. It is a sufficient answer to this argument to say that the question of dissolution is not before the law court. The court at nisi prius decreed a dissolution in May, 1885. From that decree no appeal was taken or claimed. It was made at the request of the corporators; and so far as appears no objection was made by any one. Thereupon a receiver was appointed and the case was sent to a master; and it was upon the coming in of the master's report that this question, and the only question now before the law court, was first raised. It is now too late to object to the dissolution of the corporation. The only question is, what shall be done with the small amount of assets now in the possession of the receiver? They amount to only $1,403.23, and a safe. It is the opinion of the court, and it is accordingly ordered and decreed, that the receiver pay the costs of this suit, including reasonable counsel fees, and that he pay the balance, if any shall remain, to the State treasurer for the use of the State. PETERS, Ch. J., VIRGIN, LIBBEY, EMERY and HASKELL, JJ., concurred. GORHAM v. HOLDER. March 22, 1887. LEASE-PIANO - CONDITIONAL SALE-WAIVER. In a written lease of a piano from G. to B., it was stipulated that B. should pay for the use of the piano $200 in advance and $50 quarterly thereafter, with seven and three-tenths per cent interest, and when $500 had thus been paid for the use of the piano G. should give B. a bill of sale. G. was authorized to enter B.'s dwelling and take the piano upon failure of any payment. The piano was then delivered and payments made the last October 9, 1874- until they amounted in all to $500. B. remained in undisturbed possession, without demand of any kind upon her by G., until her death in June, 1884. Held, that the pretended lease was a conditional sale, and if it was upon condition precedent the condition was waived in B.'s life-time. E. S. Ridlon, for plaintiff. Symonds & Libby and A. B. Holden, for defendant. HASKELL, J. Trover for a piano. On report. The plaintiff pretended to lease to the defendant's testatrix a piano of the stated value of $500, for the term of three months, upon a cash payment of $200, and so long thereafter as payments of $50 should be made at the end of each ensuing three months, until the full sum of $500 should be paid with interest at seven and three-tenths per cent, when the testator should receive a conveyance of the piano. The testatrix at the date of the pretended lease, December 15, 1872, paid $200 and received the piano. Installments were indorsed upon the pretended lease until October 9, 1874, when together with the first payment they aggregated $500. The testatrix retained the piano until her death in June, 1884, nearly ten years, without any request by the plaintiff, either for payments of interest, or for surrender of the piano. That came to the defendant as executor of the supposed vendee, and after demand for the same by the plaintiff, the defendant sold it for $125. The pretended lease contains all the necessary stipulations of a conditional sale. The price and when and in what installments the same was to be paid are all stipulated, and the property sold was delivered to the vendee to become hers when she had fully paid for the same. The sale may have been upon condition precedent, but that the plaintiff could waive if he saw fit; whether he has done so is a question of fact to be determined from the evidence in the case Farlow v. Ellis, 15 Gray, 229 and if the construction had been waived, the title had passed to the vendee. Seed v. Lord, 66 Me. 580; Stone v. Perry, 60 id. 48; Whitney v. Eaton, 15 Gray, 225. For nearly ten years after the plaintiff had received the full price for his piano, he allowed the vendee to retain it without requesting the payment of interest, or pretending any title to it, and not until after the death of the vendee, did he make any claim to the same. Considering that indorsements were made by the parties upon the agreement between them without any mention of interest, and that the stipulated price for the piano had been fully paid, for so long a period prior to the vendee's death, during which time she was allowed to retain it without any sug gestion from the plaintiff that it was not hers, the conclusion is irresistible that both parties must have understood that any condition in the agreement requiring payments to vest the title to the piano in the vendee had been waived by the plaintiff; and the court is satisfied that the waiver has been proved, and that the title to the piano came to the defendant as executor of the vendee. Judgment for defendant. PETERS, Ch. J., WALTON, VIRGIN, LIBBEY and EMERY, JJ., concurred. INDEX. ACCORD AND SATISFACTION. Deed of third party — evidence.] Where the defense to an action is that Reference counter-claim - ACCOUNT. - pleading.] The bill of particulars in an ACTION. 1. Debt on judgment— necessaries.] An action of debt on a judgment 2. When right of, accrues.] A. received a deed for land, and gave a mort- See CRIMINAL LAW, 425. AFFIDAVIT OF DEFENSE. 1. When insufficient.] A defendant in an action of case for the value of meat |