Lord Sumner:-

The appellants sued upon a promissory note made by the respondent and he lost in the High Court the decree, which he had recovered at the trial. Curiously enough the main question is, whether he discharged the onus of proving that the note had been lost without his default) so as to entitle him to give secondary evi dence of its contents.

According to the practice, either the original note or a copy of it had to be attached to the plaint. It was stated, both in the plaint and in the list of documents accompanying it, that the note exhibited was the original. This was on 14th Feb ruary, 1917. Next day the plaintiff's plea der received notice from the Court officials that he must amend his list and pay a fur ther process fee. He went to the office to make these defects good and, apparently, had access at least to the list of documents, if not to the other papers.

Thereafter the officials, probably on the same day, served the defendant with the plaint and so gave him the opportunity of learning that the original document had been filed in Court, but what action he took thereon, if any, is matter of conjecture.

On the 1st March, 1917, an application by the plaintiff for attachment before judgment came before the District Judge. The defendant's pleader looked at the file and was heard by the plaintiff's pleader to say that the note was forged. On this the plaintiff's pleader also looked at the file, and at once applied to the Judge, say ing that the original note had been abs tracted and a false one was substituted and asking him to hold an inquiry into the circumstances of this change. The District Judge then examined sundry officials but, the result was negative, for they did not incriminate either themselves or one another.

When the trial came on the plaintiff's pleader asked to be allowed to put in, as secondary evidence of the note, a photo graph of it taken some little time before, and, as his statement was accepted that he filed the original with the plaint and had nothing to do with the substitution, the photograph was let in. Witnesses were then called on both sides. The defendant did not deny that he had made a note for the alleged amount, Rs. 8,000, but he said that it contained no provision for interest. The photograph concluded with the words

" with interest at Rs. 5 p. c. p. m." The words "with interest" appear from the photograph to have been written by the same hand as the rest of body of the note, but at a later time and in part of the space originally left for the stamp and the sig nature, and the letters " at Rs. 5 p. c. p. m." seem to have been written at the same time as the body of the note and by the same hand currente calamo. In the event the Trial Judge found for the genuine ness of the note as shown in the photo graph and gave a decree for the amount of the principal, but reduced the interest from the exorbitant rate of 60 per cent. to a mere 6 per cent. per annum.

The High Court held on appeal that the plaintiff had failed to prove the actual at tachment of the original note to the plaint when it was filed. If so, the evidence given by his pleader was false, and false almost certainly to his knowledge, and the plaintiff neither showed that, owing to its loss or otherwise, he was unable to pro duce it for a reason not arising from de fault or neglect on his part, nor indeed that it was lost at all, (Evidence Act, 1882, Section 65 (c).) Accordingly, as the claim on the note could not succeed without either the note itself or secondary evidence of its contents (Section 91), and no alter native cause of action , was pleaded or re lied on, the suit necessarily failed.

Their Lordships are unable to accept this conclusion. The plaintiff's pleader gave positive evidence that he attached the note itself to the plaint, and that it was subsequently abstracted, and there was no direct evidence to the contrary.

Mistake on his part was unlikely, for he was a young man, just beginning practice and anything but bus