Secondary evidence of a mortgage deed requires proof of loss, and attested execution must still be legally proved.

Secondary evidence of a mortgage deed is admissible only after satisfactory proof that the original was lost or destroyed; a bare assertion that it was sent elsewhere or unavailable is insufficient. Where the deed is attested, execution must still be proved in law, ordinarily by examining at least one attesting witness unless execution is admitted or otherwise dispensed with. A pleading stating that property was bought subject to a mortgage did not amount to an unqualified admission of execution or liability. As the alleged attesting witnesses were not examined and the burden of proof remained unmet, the mortgage deed was not proved and relief was refused.

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Issues: (i) Whether secondary evidence of the mortgage deed was admissible on proof that the original had been lost or mislaid; (ii) Whether the mortgage deed was proved in accordance with law, including by calling an attesting witness, so as to bind the respondents.

Issue (i): Whether secondary evidence of the mortgage deed was admissible on proof that the original had been lost or mislaid.

Analysis: Secondary evidence of a document is admissible only when the loss or destruction of the original is established by sufficient proof. A mere assertion that the deed was sent to another person or that it was unavailable is not enough, particularly where the opposing version denies such delivery and the surrounding circumstances show divergence about the document's whereabouts. The Court held that the trial court had wrongly inferred loss without the prerequisite proof required for secondary evidence.

Conclusion: Secondary evidence was not admissible on the facts proved.

Issue (ii): Whether the mortgage deed was proved in accordance with law, including by calling an attesting witness, so as to bind the respondents.

Analysis: A statement in a written statement that property was purchased subject to a mortgage did not amount to an unqualified admission of execution or subsisting liability, especially when the pleading otherwise put execution in issue. Even apart from admissibility of secondary evidence, a mortgage bond requiring attestation had to be proved by examining at least one attesting witness unless execution was admitted or otherwise dispensed with in law. Since attesting witnesses who were said to be alive were not examined, the deed was not proved. The burden remained on the plaintiff to establish the mortgage and the continuing debt against persons who were not parties to the document.

Conclusion: The mortgage deed was not proved, and the plaintiff was not entitled to relief.

Final Conclusion: The appeal succeeded because the plaintiff failed to establish admissible secondary evidence or legal proof of the mortgage deed and the subsisting liability.

Ratio Decidendi: Secondary evidence of a document can be received only on satisfactory proof of loss or destruction of the original, and where the document is attested, execution must still be proved by lawfully required attesting evidence unless execution is admitted.

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