But in the case before us the defendant did not owe the plaintiff any debt either before or during the war, on which interest could be stopped. The debt was contracted for the first time, after the war closed, when the defendant elected to annul the policy. When it did so, it imposed on itself the obligation of placing the plaintiff in the position in which he would have been, had no policy ever been issued, after the payment to it of a sum sufficient to compensate it for the risk it had run. The sum necessary to do this can be properly ascertained only by refunding the money which it had received on the policy, with interest for the whole time after deducting the amount, which would compensate the company for the risk it ran, while the policy was in force, or, as it is called, the cost of the insurance. This is not allowing interest on a debt during the war. What is here called interest is really not interest on a debt but is simply a mode of ascertaining what is the amount of the principal, which became due from the defendant to the plaintiff for the first time after the close of the war.

Before calculating the amount due from the defendant to the plaintiff in this case I will illustrate the injustice of the rule adopted by the Supreme Court by an example. Take the case proposed by Justice Bradley of a person assured at twenty-five in a policy of $1,000.00. Twenty years afterwards he fails to pay his premium of $20.00 a year because of the breaking out of a war between his state and that of the company. He would then have been forty-five years old, and at that age for a life-policy of $1,000.00 he would have to pay $38.00. The equitable value of his policy was therefore worth, when the war broke out, the difference between an annuity for his life of $38.00 a year and an annuity for his life of $20.00 a year, that is, an annuity for his life of $18.00 a year; and this, Justice Bradley says, is what the company should pay him if they elect to annul the policy. But these premiums of $20.00 and $38.00 per annum are premiums, which more than compensate the company for the actual risk run. A considerable sum is added for profits to the company. The premium, which would just cover the actual expenses of insurance, is called the net annual premium; and some mutual societies charge for insurance this net annual pre

mium. We will suppose that this person of twenty-five years of age insures himself in such a society, which we will call a net premium company. The premium on an insurance at twentyfive years of age of $1,000.00 in such company according to the American experience-table, money being supposed to be worth to the company 4 per cent. compound interest, would be $13.42; and at forty-five years of age $25.99. By paying therefore as in the other company $20.00 a year premium, the assured could at the age of twenty-five get a policy of nearly $1,500.00 of the net premium company instead of $1,000.00; and at the age of forty-five for a policy of $1,500.00, he would have to pay $39.00. So that the net premium company, if it annulled a life-policy for $1,500.00 would have to pay an annuity of $19.00 a year for life, or $1.00 a year more than the other company, who annulled a life-policy of only $1,000.00. The assured for twenty years has paid to each of the companies the same sum. From the net premium company he received for twenty years an insurance of $1,500.00, and from the other company an insurance for the same time of but $1,000.00. Yet by the rule laid down by the Supreme Court the net premium company on annulling the policy pays the assured a larger amount than the other company; while it is obvious that it ought to have paid a much less sum than the other company, because it gave to the assured a life-policy of $1,500.00, while the other company gave to him only a life-policy of $1,000.00.

This absurd result is produced by the fact, that by this mode of calculation the net premium company received nothing for profits, while the other company was allowed a large amount for profits. In my judgment it was not entitled to any allowance for profits. The proper mode of calculation is to charge each company with the $20.00 a year for the twenty years received by each of them of the assured and credit each company with the risk of insurance, which each company incurred in carrying the insurance named in their respective policies. Of course the credits of the net premium company would exceed the credits of the other company, its policy being the larger; and of course less would have to be paid by the net premium company. This result is obviously just.

To ascertain the credit, to which a company is entitled on

the amount received of the assured in any year, we must calculate the cost to the company of carrying the risk of having to pay during that year the amount risked by the company that year; and to do this, we must use tables of mortality, which show the average number of deaths in any given number of persons in one year at different ages. The company is bound in a reasonable time after the war to elect, whether it will continue the policy on the payment up of the back premiums and interest, or annul the contract or policy. If it fails to do so in a reasonable time, the assured could demand the return of his money, which he had paid, after the retention by the company of the cost of the insurance, while the policy was in force. In this case for the purposes of calculation we will assume that the 31st of March, 1866, was such reasonable time after the war, within which it should have made such election, but after which, if it had not elected to continue the policy, the plaintiff could treat it as if annulled. There was no table of mortality offered in evidence in this case, but the court may take judicial notice of such tables. The table, which has been generally used in Virginia, was one made by Professor Wiggleworth, of Cambridge University, and is published in Robinson's Practice (old) vol. 2, p. 381. It was adopted by the Supreme Court of Massachusetts soon after its publication some seventy years ago (Eastabrook v. Hapgood's ex'r, 10 Mass. 322,) as the rule in estimating the value of a dower or other life-interest, and it has been extensively used in Virginia and formerly in this state for that purpose.

But there have been more recently published two tables of mortality, which can be more relied on than Professor Wiggleworth's table, where the lives of assured persons are concerned, as they were constructed from accurate observations made by insurance-companies in their business. The first of these tables is known as the combined experience or actuary's table. It was prepared by a committee of eminent actuaries on data afforded by the combined experience of seventeen of the principal life-insurance offices in England and was deduced from sixty-two thousand five hundred and thirtyseven assurances. It was first published in 1843. The other table of mortality was constructed from the experience of the Mutual Life-Insurance Company of New York by Mr. Shep

ard Homans, who availed himself of other statistics to ascertain the laws of mortality as applicable to healthy insured lives in this country; and all the standard European tables were used in adjusting it. This table is known as the Amercan Experience Table and was adopted by New York in 1868, which state has also adopted four and one half per cent.compound interest as the value of money to an insurance-company. This table and four and one half per cent. per annum interest has since been adopted by the states of California, Kansas, Kentucky, Missouri, Michigan and Wisconsin. On the other hand the combined experience table of mortality and four per cent. per annum compound interest is in use not only in England, but also in Massachusetts, Connecticut, Maine, New Hampshire and Illinois. Of these two tables, it seems to me, the combined experience table should be preferred, because on account of the material, out of which it was constructed, it is more likely to be accurate and better adjusted than the American experience-table. But on the other hand the four and one half per cent. per annum compound interest, which is used in connection with the American experience-table, it seems to me, is in this country more nearly approximate the actual value of money to an insurance-company than four per cent., which is used in connection with the combined experience-table.

The difference between these two tables is not very great and in this case would not probably very materially affect the calculation of the cost of insurance to the defendant in carrying the risk of the insurance of the plaintiff of $3,000.00 for eleven years prior to the war; but the difference between making the calculation on a basis of four or four and one-half per cent. compound interest is very considerable. We will make it both ways.

The mode of making these calculations may be found in the Principles and Practice of Life-Insurance by Nathan Willey, edition of 1880, pp. 48-49. And from this work I learn the facts above stated in reference to these two mortality-tables. Table 43, p. 146 and table 50, p. 153 in this work show the cost of insurance for $1,000.00 of an ordinary lifepolicy during the first eight years of policies issued at different ages calculated from the American experience-table of

mortality at four and one-half per cent. compound interest, and calculated from the combined experience-table of mortality at four per cent. compound interest. These calculations I have had to extend through the ninth, tenth and eleventh years in making the necessary calculations in this case.

These tables with my calculations added show, that when the combined experience mortality-tables are used with four per cent. compound interest as the basis of calculation, the cost of insuring for life a person forty-six years old for $1,000.00 for the first eleven years will be as follows: First year $12.60; second year $13.01; third year $13.44; fourth year $13.90; fifth year $14.40; sixth year $14.92; seventh year $15.48; eighth year $16.08; ninth year $16.71; tenth year $17.37; eleventh year $18.06. When the American experience mortality-table is used with four and one half per cent. compound interest as the basis of calculation then the cost of insurance for life of a person forty-six years old for the first eleven years will be as follows: First year $11.37; second year $11.59; third year $11.85; fourth year $12.18; fifth year $12.54; sixth year $12.95; seventh year $13.40; eighth year $13.89; ninth year $14.42; tenth year $14.99; and eleventh year $15.60. As the insurance-policy in the case before us was for $3,000.00 of course the cost of insurance for each of these years would be three times the above sums. We have taken forty-six as the age of the plaintiff, when he was insured, because, though he says he was forty-five, yet the table on the back of the policy shows, that he was charged the premium, which would be charged to one aged forty-six, when the policy issued, I assume therefore that he was really over forty-five when the policy issued, he being charged as though he was forty-six.

We will now construct a table to show what amount the plaintiff in this suit was entitled to recover of the defendant. In the first column will be set down the years in succession, during which the policy was in force, beginning with 1851, on March 31st of which year the policy was issued. In the second column opposite each year is set down the costs, which by the preceding calculation the defendant was at in carrying the risk of the policy of $3,000.00 for that year. In the third column is set down the amount paid each year on March 31st,