quality of the act done. That the voluntary act of the party interested, and not the felony, is the thing contemplated by the exception, is further apparent from this circumstance, that the clause in the policy goes on to do away with the exceptions altogether, when the deceased has parted with all interest, either for himself or his family, by assigning the policy, and, where the deceased has mortgaged or charged it for the benefit of creditors, to do away with the exception to the extent of the sum secured; yet felony would be committed in those cases just as much as if the policy had not been assigned.

I do not inquire into the reason of this qualification of the exception in the policy,—whether it has any thing to do with the removal from the deceased of temptation to destroy himself when he has parted with his interest, or not; or whether it is inserted as an inducement to those who want to raise money, to effect policies at this office; or what other reason may be conjectured. It is sufficient, for my purpose, that it tends to shew that the contracting parties did not regard the commission of felony, as such, in their contract.

Upon the whole, I am of opinion that the words "commit suicide" mean only "kill himself;" and that the true question to be put to the jury is that which was put by Erskine, J., in Borradaile v. Hunter - whether the deceased knew the probable consequences of his act, and did that act voluntarily, intending such consequences to follow; and that no question should be put as to the act done being criminal or not.

It follows, that, in my opinion, the judgment must be reversed, and a venire de novo awarded.

ALDERSON, B. I also am of opinion that there ought to be a venire de novo in this case; and I shall say but a very few words upon the points raised.

The true principle governing cases of this sort seems

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to be very well laid down by my brother Maule in Borradaile v. Hunter. The words in question seem to me in this case to have their proper construction, when taken as including all cases of voluntary self-destruction. They do not apply to cases in which the will is not exercised at all; as, where death results from accident or delirium; but where the self-destruction is voluntary, although the will may be perverted. It seems to me, therefore, that the argument arising out of the peculiar use of the word "suicide" in this contract, is fallacious; and that the word is often used in its most extended sense, that, namely, which has been assigned to it on behalf of the plaintiffs in error. For instance, to take so common a book as the Encyclopædia Britannica, under the head of "Suicide," I find this observation: "The general causes of suicide are twofold insanity, and crime." So that the word "suicide" has often, in its ordinary acceptation in the English language, that enlarged sense; and it is not, therefore, to be confined to cases of criminal intention alone. Then, reliance is placed upon the words in the company of which the word "suicide" is found in the policy "death by duelling or by the hands of justice." I doubt, however, whether that argument carries the case much further. Suppose a person insured were to die in a duel, I do not conceive it would be competent to his representatives to say that he was insane at the time. Cases may easily be suggested, in which a duel might be fatal, and yet not felonious; such as, a duel in the course of war, or the like.

The case, however, has been so fully gone into by those learned judges who have immediately preceded me, that I shall do no more than express my concurrence with their judgments.

PARKE, B. The question in this case may be very shortly stated. By the terms of the policy, all the con

ditions and regulations indorsed, are incorporated in it; and one of those, the sixth, is, that every policy effected by a person on his own life, shall be void, if such person shall commit suicide, or die by duelling or the hands of justice and there is a plea, that the intestate did commit suicide.

On the trial, my brother Cresswell told the jury, "that, in order to find the said issue (a) for the defendants, it was necessary that the said jury should be satisfied that Schwabe died by his own voluntary act, being then able to distinguish between right and wrong, and to appreciate the nature and quality of the act that he was doing, so as to be a responsible moral agent; that the burthen of proof as to his dying by his own voluntary act, was on the defendants, but, that being established, the jury must assume that he was of sane mind, and a responsible moral agent, unless the contrary should appear in evidence."

The question is, whether this direction was correct. I agree with the majority of the judges who have preceded me, that part of the direction, viz. that as to the necessity of his being a responsible moral agent, was wrong; for, I think, that, according to the proper construction of this policy, if the intestate voluntarily killed himself, it was immaterial whether he was then sane or

not.

This being a written contract between the parties, the construction of it belongs to the court; and the court must adopt the usual rules, and construe the provisos or conditions, as well as the other parts of the instrument, according to the ordinary meaning of the language used; except that terms of art, or technical words, must be understood in their proper sense, unless the context controls or alters their meaning: antient words may be explained by contemporaneous usage;

(a) The issue joined on the second plea.

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and words which have acquired a peculiar sense, by usage, in particular districts, occupations, or trades, must be read (the usage being found by the jury) in their acquired sense.

Here, there is no occasion for any of these exceptions in construing this instrument. The two latter are inapplicable; and there is no ground for saying that the word "suicide" is a legal technical term, or word of art. An inquisition stating that the deceased committed suicide, would be clearly informal and bad. Nor have we a decision of any court on the meaning of these precise words, by which we should consider ourselves. bound. The case of Borradaile v. Hunter (a) certainly is not such; nor can the intimation of the opinion of the Lord Chief Justice Tindal, by way of illustration of his argument, as to the meaning of the expressions now under consideration, have the same effect as a decision.

The whole question resolves itself into an inquiry as to the sense of words used in the ordinary language of the present day, the instrument to be construed bearing date in the year 1836; and we are all perfectly competent to form an opinion upon such a subject, and need not refer to lexicographers, or authors, antient or modern. If the case depended on the explanation given by dictionaries, the result, nevertheless, would be the same. Johnson, indeed, explains the word "suicide" by "self-murder, the horrid crime of self-murder "— which, no doubt, it includes; Webster, as both "selfmurder" and "the act of designedly destroying oneself," and adds, to constitute suicide, the person must be of years of discretion, and refers to Blackstone, inaccurately (b); for, the passage in that author (c) applies to

person being felo de se; Richardson, who states them to be words of modern formation, as "the slaying of himself, or self-murder." But the question does not depend upon the opinion of such authors; for, though they are authorities, they are not conclusive: the case turns on the meaning of the vernacular language which we now use; and I must own that I feel no doubt as to the import of the expression "commit suicide." In ordinary parlance, every one would so speak of one who had purposely killed himself, whether from tædium of life, or transport of grief, or in a fit of temporary insanity. To die by his own hands, or to commit suicide, seems to me to be all one, and to apply to all cases of voluntary selfhomicide; and I do not see any reason why a different sense to the ordinary one should be attributed to these words in this instrument: on the contrary, I see very good ground for believing that they are used in their ordinary sense, in order to avoid the consequence which would have followed the adoption of such words as "committing felony of himself," or "self-murder;" as it may be well supposed that juries would, in favour of the family of the deceased, take the same lax view of the evidence as coroners' juries generally do.

I think that the judgment ought to be reversed, and a venire de novo awarded.

POLLOCK, C. B. I regret that I differ from the majority of the court who have already delivered their opinions: but, as, after the fullest deliberation, I feel compelled to come to the conclusion that the direction of my brother Cresswell to the jury at the trial, was correct in point in law, and that the plaintiff below is entitled to our judgment, it is my duty, with whatever reluctance and hesitation, to state my own view of the case, and the reasons upon which that conclusion is founded.

The question, in point of form, has been so clearly

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