ratifies the whole and that ratification may be either express or implied, that is, from conduct from which it may be implied that the principal intended to ratify. All this, however, leaves out of consideration the question. of estoppel, that is, that without a conscious intention to ratify the so-called principal may be estopped from denying that his conduct must be treated as a ratification. The voluminous law relating to ostensible agents is based on the doctrine of estoppel. There seems not to be much in the way of decisions of ratification or adoption by estoppel or what may perhaps be more accurately called estoppel to deny ratification. The distinction in cases of principal and agent is discussed in 31 Cyc., pp. 1247; 1234 et seq. This distinction, namely, between ratification to be implied from conduct showing an intention and ratification or adoption without intention but in consequence of conduct which makes it inequitable to deny ratification, is evident in theory but is not always observed in the decisions. Bramwell, B. in Keen v. Priest (1858) 1 F. & F. 314, said, "Silence is sometimes conduct." Willes, J. in Richards v. Gellatley (1872) L.R. 7 C.P. 127, at p. 131; 20 L.T. 425; 1 Asp. M.C. 277, said: "It seems to have been at one time thought that a duty was cast upon the recipient of a letter to answer it, and that his omission to do so amounted to evidence of an admission of the truth of the statements contained in it. But that notion has been long since exploded, and the absurdity of acting upon it demonstrated. It may be otherwise where the relation between the parties is such that a reply might be properly expected." See also Wiedemann v. Walpole [1891] 2 Q.B. 534; 60 L.J.Q.B. 762. In Maple Leaf Portland Cement Co. v. Owen Sound Iron Works Co. (1913) 4 O.W.N. 721; 23 O.W.R. 907; affirmed 24 O.W.R. 790, the Court held on evidence of silence-omission to notify--and conduct that the defendants were bound by a contract made by one professing to be agent but being without authority. App. Div. 1918 McKay V. Tudhope Anderson Co., Ltd. Beck, J. App. Div. 1918 McKay V. Tudhope Anderson Co., Ltd. Beck, J. 1918 The facts which went to the jury in the present case, though I would therefore dismiss the appeal with costs. Appeal dismissed with costs. Short, Ross, Selwood, Shaw & Mayhood, solicitors for plaintiff, respondent. Clarke, Carson, Macleod & Co., solicitors for defendant, appellant. 1 Nov. 19 [APPELLATE DIVISION] LAING (Plaintiff) Appellant V. NORTHERN LIFE ASSURANCE COMPANY (Defendant) Respondent Practice-Evidence - Commission - Discretion of Court- The granting of a commission to examine witnesses abroad is a matter App. Div. 1918 Laing V. An appeal by plaintiff from a judgment by Ives, J. affirming an order by A. Y. Blain, Esq., Master in Chambers at Edmonton, giving the defendant leave to issue a commission for the examination in the state of Wisconsin of a medical practitioner as a witness on the defendant's behalf. Appeal Assur. Co. dismissed and order varied. The appeal was heard by HARVEY, C.J., STUART, BECK and J. E. Varley and J. R. Palmer, for plaintiff, appellant. November 19, 1918. The judgment of the Court was delivered by Cur, adv. vult. BECK, J.-Mr. Blain, Master at Edmonton, made an order giving the defendant company leave to issue a commission for the examination in the state of Wisconsin of a medical practitioner as a witness on the defendant's behalf. Ives, J. affirmed the order on appeal. The plaintiff appeals to the Court. The action is on a life-insurance policy. A defence is that the insured made false and fraudulent answers to certain questions in the application for insurance relating to his state of health and to medical advice and attendance. The witness, a Dr. Reinhart, sought to be examined, is stated to have attended the deceased from October to December, 1915, and again immediately prior to his death and to have signed the usual death certificate. The witness is undoubtedly a material witness for the defendant. The expense of bringing him to this jurisdiction for viva voce examination at the trial may, it is calculated, amount to as much as $700. The claim is for $2,000. The practice generally is to be found in Hume-Williams & Macklin's Evidence on Commission; 13 Halsbury tit. “Evidence," pars. 830 et seq.; Annual Practice, 1918, pp. 635 et seq. and this Court has dealt with aspects of it in Park v. Schneider (1912) 5 Alta. L.R. 423; 2 W.W.R. 1022; 22 W.L.R. 70; Fidelity Trust Co. v. Schneider (1913) 6 Alta. Northern Life Beck, J. App. Div. 1918 Laing V. Northern Life Assur. Co. Beck, J. L.R. 446; 5 W.W.R. 237; 25 W.L.R. 611; Kaye v. Burnsland The granting of a commission is a matter of discretion. It is more freely granted in the case of a mere witness than in the case of a party and much more freely for the examination of a defendant than of a plaintiff. The nature of the issue upon which the evidence is to be given is an important consideration. The Court may impose conditions. This Court has, on several occasions, allowed a commission to go, subject to the condition that the evidence taken can be used at the trial only by leave of a Judge to be obtained on motion before trial after the return and opening of the commission. This is a much less stringent condition than that imposed by the English Court of Appeal in Nadin v. Bassett, 25 Ch. D. 21; 53 L.J. Ch. 253, the condition there being that the depositions of the plaintiff should not be read at the trial if the defendant required the plaintiff to appear to be examined and cross-examined. The issue in the present case, on which the evidence of the witness is required, is one of fraud. In the cases in this Court the decision of the Supreme Court of Canada in Peters v. Perras, 42 S.C.R. 244; 13 Alta. L.R. 80, was referred to as largely inducing the Court to exercise somewhat more care and oversight in granting commissions than perhaps was hitherto the practice. The reasons for the decision of the Supreme Court are set forth at length in 13 Alta. L.R. 80. I think it is just to add to the order made in the present case a condition to the effect that it shall be in the discretion of a Judge to refuse to permit the depositions to be used on application to be made by the plaintiff before trial. I would, therefore, dismiss the appeal, varying the order by the insertion of a condition as above indicated. As to the costs of the appeal I think they should go to the respondent. Appeal dismissed, with variation of order. Harris and Palmer, solicitors for plaintiff, appellant. MacKay, McDonald & Co., solicitors for defendant, respondent. [APPELLATE DIVISION] SCOTT (Plaintiff) Respondent v. HARRIS (Defendant) Appellant Malicious Prosecution-Absence of Reasonable and Probable Cause-Malice-Inference of—Effect of Absence of Enquiry-Honest Belief in Guilt. While absence of reasonable and probable cause is some evidence from which the malice necessary to support an action for malicious prosecution may be inferred, yet the two conditions are distinct and different; malice is entirely a state of mind, the absence of reasonable and probable cause is, at least partly, an extraneous condition arising by reason of the non-existence of certain facts. The making of an enquiry as to the guilt of the accused is to be considered in determining whether reasonable cause existed, but it is not a state of mind. (Cox v. English, Scottish and Australian Bank [1905] A.C. 168, 74 L.J.P.C. 62; Abrath v. N.E. Ry. Co. (1883) 11 Q.B.D. 440; 52 L.J.Q.B. 620; Brown v. Hawkes [1891] 2 Q.B. 718; 61 L.J.Q.B. 151; Watson v. Smith, 15 T.L. R. 473 cited). If a person who honestly believes in the guilt of another and desires only the enforcement of the law lays a charge against him without making any enquiry whatever as to the accused's guilt, he is not liable in an action for malicious prosecution, even though the result of enquiries would have shown his mistake. An appeal by defendant from a judgment by Walsh, J. in favour of the plaintiff, upon the verdict of a jury, in an action for malicious prosecution. Appeal allowed with costs. and action dismissed with costs. The appeal was heard by HARVEY, C.J., BECK and HYNDMAN, JJ. D. H. Elton, for plaintiff, respondent. C. F. Harris, for defendant, appellant. December 12, 1918. The judgment of the Court was delivered by Cur. adv. vult. HARVEY, C.J.—This is an appeal from a judgment directed by Walsh, J. upon the verdict of a jury. The action was one of malicious prosecution. In the conduct of the trial the trial Judge first submitted the evidence to the jury for the purpose of deciding the question of reasonable and probable cause, and upon their finding 1918 Dec. 12 |