March 31st.

opposite the year as shown by the evidence in this case. In the fourth column is set down the difference opposite each year between the amount paid by the plaintiff each year and the costs incurred by the defendant in carrying the risk that year. These are the sums with interest, which make up the amount, which the defendant ought to have paid plaintiff on March 31, 1866, the time we have assumed as a reasonable time after the war, in which the defendant should elect, whether to continue or annul the policy. In the fifth column is set down the interest on these different sums to March 31, 18C6; and in the last column is the principal with interest added. The sum total of the last column shows the amount due plaintiff on March 31, 1866; and if interest be added till April 10, 1879, when the verdict was rendered, we have what the verdict should have been. The first table below is based on the combined experience mortality-table and the assumption, that money was worth to the company only four cent. per annum compound interest; the second is based on the American experience mortality-table and the assumption, that money was worth to the company four and one half per cent. per annum compound interest :

Balance due plaintiff April 10, 1879..

Interest on the same from March 31, 1866, to April 10, 1879...... 405 85

If the calculation of the cost of insurance be based on the American experience mortality-table, and the value of money

.$925 08

Total am't du

March 31, 1866.

to the company be considered as four and one half per annum compound interest the table will be:

Interest on $619.64 from March 31, 1866, to April 10, 1879..... $ 483 57

Balance due April 10, 1879.......

$ 1,102 21

The verdict of the jury rendered on April 10th, 1879, was for $924.10, which, if we calculate the cost of insurance by the combined experience-tables of mortality and regard money as worth only four per cent. per annum compound interest, was ninety-eight cents less than was due from the defend

But if we calculate the cost of insurance by the American experience-table of mortality and regard four and one half per cent. per annum compound interest as the value of money before the war to insurance-companies, then the verdict of the jury was too small by $178.11. We think, that in this case the calculations should be made on the basis, that money was worth to the company four and one half per cent., as it came into their hands before the war, though it would not at this time probably be worth that much. If this be so, even if we were to exclude from the calculation the interest from the time the policy was forfeited to the close of the war, which for reasons we have stated we think ought not to be done, still the verdict of the jury would be at least $40.00 less than the amount then really due to the plaintiff. It seems therefore obvious, that in any view, which can be taken of the case, the verdict of the jury can not be regarded as larger than was proper, and it cannot be set aside as excessive;

and unless errors were committed by the court to the prejudice of the defendants, the judgment must stand.

We have considered all the instructions connected with the pleas of the statute of limitations and found no error in the action of the court on them. We will now consider the other instructions. Instruction No. 2 was obviously properly re jected by the court; for after the election of the defendant to annul the contract, which results merely from its failure to offer to renew it within a reasonable time after the war, it had no right to demand payment of any of the premium-notes. It had received in cash, as we have seen, much more than would compensate it for the risk, which it had run, and was, as it now is, bound to surrender the premium-notes, as they were given for a consideration, which has failed by the conduct and election of the defendant. The court properly refused to give instruction No. 3. It asked the court to instruct the jury, that if the money paid by the plaintiff during the time the policy was in force, did not exceed the rates of the company for carrying the risk for the time it did, then he was not entitled to recover. We have seen, that after the annulment of the contract the rates which the defendant charged for carrying such a risk ought not to be paid by the plaintiff, and that all that it could ask was an amount just sufficient to compensate it for its risk and not its rates, which included a large profit. The modification of this instruction to the effect, that the company was entitled to equitable annual premiums for carrying the risk for the time it did and not to its rates of charge, is correct, understanding, as I do and as I suppose the jury did, by equitable annual premiums just premiums, such as would compensate the company for the risk it ran. These cover all the instructions given or refused by the court; and we find no error in the action of the court on any of them to the prejudice of the defendant.

The court did not err in permitting the policy to go in evidence to the jury. It was essential to a proper understanding of the case. Nor did the court err in permitting the letter of the president of the company to William H. Travers, the counsel of plaintiff, of date May 17, 1877, to be read to the jury. It was no doubt believed, as it is now insisted, that it tended to give the jury some idea of the dividends, which the plain

tiff was entitled to; and it did tend to do so in a very imperfect manner. The conclusion I reached was, that this letter in connection with the rate of premium charged the plaintiff, as compared with the net premium charges, made it probable, that the plaintiff's dividends averaged about $30.00; but this deduction was by no means satisfactory to my mind. If the case was to be determined by the rule laid down by the Supreme Court, this enquiry as to the amount of these dividends was essential; but according to the views I have expressed it was unimportant. But on other grounds this letter was properly receivable in evidence. The first item in the account in it was cash-premiums due $797.48. As the policy showed the whole amount of cash-premiums due up to the date of this letter, the jury could properly infer from this, that all of them were admitted to have been paid, except enough to make up the $797.48. The plaintiff testified to the exact number of cash-premiums he had paid, but did not produce receipts for many of them; and this admission of the payment of cash-premiums in excess of that, for which receipts had been produced, was certainly proper evidence to go to the jury.

I have been able to find no error in the record to the prejudice of the defendant; and therefore the judgment of the circuit court of April 10, 1879, must be affirmed; and the defendant in error must recover of the plaintiff in error his costs in this Court expended and damages according to law. JUDGES HAYMOND AND JOHNSON CONCURRED. JUDGMENT AFFIRMED.

Wheeling.

BOARD OF EDUCATION OF CABIN CREEK DISTRICT OF

KANAWHA COUNTY

v.

OLD DOMINION I. M. & M. COMPANY.

Decided October 29, 1881.

(*PATTON, JUDGE, absent.)

1. The levying of a tax is a matter solely of statutory creation; and if specific means for its collection are prescribed in the statute-law, no other means can be resorted to to coerce the payment.

*Case submitted before JUDGE PATTON came upon the bench.

2. No suit can be brought under our statute-law against a delinquent taxpayer to collect township school-taxes.

3. No suit in equity can be brought to enforce the lien for township-taxes created by the 9th section of chapter 49 of the Code.

Appeal from a decree of the circuit court of the county of Kanawha, rendered on the 25th day of May, 1878, in a cause in said court then pending, wherein the Board of Education of Cabin Creek District of Kanawha county was plaintiff, and the Old Dominion Iron Mining and Manufacturing Company was defendant, allowed upon the petition of the said plaintiff.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the decree appealed from.

GREEN, JUDGE, furnishes the following statement of the

case:

The board of education of Cabin Creek district of Kanawha county in October, 1875, filed its bill in the circuit court of Kanawha county against The Old Dominion Iron, Mining and Manufacturing Company, a corporation under the laws of Virginia before the formation of this state, which was authorized to hold lands within this state. The bill alleged, that it owned six tracts of land located in Cabin Creek township in said county of Kanawha; that the board of education of Cabin Creek township in the manner prescribed by law, stated in detail in the bill, for the support and maintainance of free schools in said township for the years 1867, 1868 and 1869 severally took the proper steps to have assessed, and did have legally assessed, certain taxes named on all the taxable property of the township. The bill shows, that this taxation was legally made, and that the assessments were binding,all the requirements of the statute-law having been strictly followed; that said school-taxes so assessed against said six tracts of land of the defendant for the year 1867 amounted to $52.52, for 1868 to $136.72, and for 1869 to $117.19.

The bill further states, that the Old Dominion Mining and Manufacturing Company was a non-resident corporation without an agent to represent it in this state; that these school-taxes are in arrear and have never been collected by