
    Nathan Rice et al, Administrators, versus New England Marine Insurance Company.
    á witness having testified that he made a certain statement in conversation with A, evidence was admitted, for the purpose of impeaching his credit in point of recollection, of his having made a different statement to B, when A was not present, rhe master of a vessel writes to his agent, that he ie shall sail on the 12th,” &c., and the agent, in effecting insurance for him, represents that he “ expected to sail about tlu 12th.” Held not to be a misrepresentation, the first expression denoting only an expectation
    In effecting insuiance on property on board a certain brig from Kingston to St. An drews, the assured communicates truly to the underwriter, that he is informed by the master of a vessel .which left Kingston on the 20th of August, that the brig was to sail in four days after, which would make her within time, but she had in fact sailed on the 12th, so that she was out of time. Held not to be a misrepresentation.
    Assumpsit upon a policy of insurance made by the defendants on the 28th of September, 1821, on property belonging to Baxter, the plaintiffs’ intestate, on board the brig Robert, of which Baxter was master, at and from Kingston, Jamaica, to St. Andrews, New Brunswick. The loss was admitted, the vessel having been piratically assailed on the voyage described in the policy, and plundered of the property.
    The defence was, that there was a misrepresentation as to the time of the vessel’s sailing from Kingston; and it was satisfactorily proved, that the fact supposed to have been misrepresented was material to the risk undertaken by the defendants.
    On this point it was proved by Aaron Baldwin, who pro cured the policy, that on the morning of the day on which it was obtained, he received from one Currie, of Campo Bello, the agent of Baxter, two letters, one dated the 20th of September, in which he desires Baldwin to procure insurance, and states that Baxter expected to sail on the 12th of August, the other dated the 21st of September, in which he mentions the arrival of the James after a passage of thirty-two days from Kingston, and that, he was informed by Hewett, the master of the James, that the Robert would not sail until four days after the Jame= Baldwin testified that both of these letters were handed oy him to Hall, the president of die company, who read them, and with the witness calculated, ft'011 the facts therein stated, the probable time of the Robert’A sa^n§ h.'om Kingston to be about the 24th of August, which would leave her out twenty-nine days, which was within the ordinary passage from Kingston to St. Andrews ; where upon the words, “ Expected to sail about the 24th ult.,” were inserted in the margin of the policy. Currie, before writing his letter of the 20th of September, had received a letter from Baxter, dated the 6th of August, saying, “ I shall leave Kingston on the 12thand the vessel did in fact sail on the 12th, so that when the policy was effected she would have been out forty days, which was out of time. She did in fact arrive at St. Andrews on the 22d of September, but her arrival was not known.
    The cause was submitted to the jury on the question, whether the facts stated in Currie’s letter of September 21st, of the Robert’s having been left at Kingston when the James sailed from that port, and that she was to sail four or five days after the James, were in truth communicated to Currie by Hewett by mistake, or whether Currie misapprehended Hewett and stated the facts in his letter by mistake. The defendants contended, that as the information was in fact not true, the policy which was obtained upon it was void, although Currie truly stated the information he had received ; but in this they were overruled, and the chief justice instructed the jury, that if they were satisfied from the evidence, that Hewett did state to Currie the facts as related in Currie’s letter, the contract was valid, notwithstanding the facts proved not to bo true.
    There being a direct contradiction between the testimony of Currie and of Hewett on this subject, the plaintiffs offered the depositions of W. Burke and J. Kent, to prove that on the night after the arrival of the James, Hewett stated to Kent that he had left the Robert at Kingston to sail in four or five days after him. This evidence was objected to, because Currie was not then present, and because it wag not part of Hewett’s conversation with him; but it was admitted.
    A verdict was found for the plaintiffs ; but if the instructian to the jury was incorrect, or if the depositions of Burke and Kent were improperly admitted, a new trial was to be granted.
    
      March 10th.
    
    
      March 26th
    
    
      Prescott and Hubbard, for the defendants,
    to show that a representation of facts which were not true, although made by mistake and without any fraud, avoids a policy, cited Park, (7th ed.) 384; Marsh. (Candy’s ed.) 450, 453, 456, 457, 463; M'Dowall v. Fraser, 1 Doug. 260.
    The depositions of Burke and Kent seem to have been introduced, not to impeach the veracity of Hewett, but to show that he made a mistake. The plaintiffs attempt to prove his conversation with Currie by proving a collateral fact, namely, that he had made a certain statement to another person. This comes within the principle of the rule, that a witness is not to be cross-examined as to a distinct collateral fact for the purpose of contradicting him. Spenceley v. De Willott, 7 East, 108; 1 Stark. Ev. 145; Rex v. Watson, 2 Stark. R. 149, 156.
    
      Shaw and Bartlett, contra,
    
    referred, as to the representations of Currie, to Park, (7th • ed.) 318, cites Barber v. Fletcher, 1 Doug. 305; Williams v. Delafield, 2 Caines’s R. 329; — and as to the admissibility of the depositions, to Tucker v. Welsh, 17 Mass. R. 160.
   Parker C. J.

delivered the opinion of the Court. We think there is no doubt but that the evidence objected to at the trial was properly admitted. It went to impeach the. credit of Hewett in respect to recollection, his testimony being directly contrary, in a material point, to that of Currie, and the cause turning before the jury upon the credit to be given to one or the other of the two principal witnesses.

We are to take it as proved then, that the information obtained from Hewett was truly and correctly represented to the president of the office ; and if this be so, although the fact thus communicated was not true, there was no misrepresentation, for the insured or his agent is bound only to communicate all the information he has ; and if the insurer is not satisfied with that, he may require a warranty.

Nor do we think the case proves a misrepresentation in the other point which has been urged in argument. Baxter wrote to Currie, his agent, from Kingston, and, in a postscript, ■ stated that he should sail on the 12th of the month. Currie, jn his letter of the 20th of September to Baldwin, wnom he desires to procure insurance, says that he (Baxter) expected to sail on the 12th. We think that the statement of the day on which a vessel will sail, is substantially nothing more than stating an expectation that she will sail on that day. The most positive intentions to sail on any future day, amount only to a strong expectation, for it must depend upon the elements and other causes affecting the sailing of vessels, whether such intention shall be executed or not. And if the time of sailing be material to the risk, the insurer would be as likely to require a warranty that the vessel would sail or had sailed on the day proposed, if it were stated positively, as if stated only as an expectation.

Since this cause was argued, our attention has been called to a case in 3 Bligh’s Reports (Dennistoun v. Lillie) recently decided by the lord chancellor in Great Britain, on appeal from the Lords of Council and Session in Scotland, which upon critical examination we do not think militates against our opinion. The letter upon which the insurance was obtained was in these words : — u The Brilliant will sail on the first of May, a receiving vessel, in which the writer of this will take passage.” The Brilliant in fact had sailed a week before, viz. on the 23d of April. This was held to be a representation that the vessel was safe in harbour until the 1st of May, and it being time of war, the fact was undoubtedly material. The judge admiral, before whom the case was first tried, grounded his opinion upon the fact, that by the communication the insurer saw and understood that the vessel was positively intended to remain in New Providence, and not to sail therefrom till the 1st of May, and that the policy was subscribed under that impression ; whereas in truth she might have been captured before the time when it was represented she would sail. The lord chancellor takes notice of the same circumstance, and relies upon it as material. He asks, whether in cases which go beyond expectation, where there is a misrepresentation of a material fact, the policy is not vacated. Now that was clearly a case that went beyond

expectation, for the thing had happened which was represented as about to take place at a time subsequent to the event. The case before us did not go beyond expectation, for the vessel had not sailed until the day when it was stated she was expected to sail, and therefore her sailing was a proper subject of expectation, and an assertion that she would sail on that day could, for the reasons above mentioned, amount to nothing more than the assertion of an expectation. The lord chancellor concludes with saying, that there is a difference between the representation of an expectation, and the representation of a fact; in which opinion we agree; but we do not think that a representation that a vessel will sail on a future day, is under the circumstances of this case a fact, but an expectation.

But even if we had not come to this opinion, the case would stand well for the plaintiffs, for the insurance was not at all influenced by the supposed misrepresentation of Baxter’s information in the letter to Currie. It was on the letter of Currie of the 21st of September, in which he gives the information obtained from Captain Hewett, that the president and Baldwin made their calculations, in consequence of which the memorandum was made in the margin of the policy, “Expected to sail about the 24th of August.” This necessarily superseded the prior information, because, if true, it established the fact that the vessel had not sailed until several days after the 12th, and created a probability that she would sail about the 24th; and it was upon the expectation founded on this probability, that the policy was effected.

We are satisfied, that though this is an unfortunate case for the office, there is no principle of the law of insurance upon which they can be exonerated from the loss.

Judgment according to verdict. 
      
       See 2 Phillips on Ins. 82 to 95,101, 102; Bowden v. Vaughan, 10 East, 415; Hubbard v. Glover, 3 Campb. 313; Arnot v. Stewart, 5 Dow, 274; Allegre v. Maryland Ins. Co., 2 Gill & Johns. 136; Alsop v Commercial Ins. Co. 1 Sumner, 457.
     
      
       See the case of Baxter v. New England Ins. Co. 3 Mason, 96, upon the same policy.
     