( 109 )
AENOLIS v. MUTIT MENIKA.
D. C., Ratnapura, 542.
Evidence—Proof of deed—Number of witnesses to be called.
In order to prove the execution of a mortgage bond attested by anotary and two witnesses it is not necessary that the notary andboth the attesting witnesses should be called. It may be provedby the evidence of only one witness, although as a matter of pre-caution it may be advisable in many cases to call all the attestingwitnesses.
rT'BIS was an appeal by the plaintiff from a judgment of theJ- District Judge dismissing his claim with costs. The actionwas one on a mortgage bond, which the defendant impeached as aforgery. The plaintiff called the notary and one of the two attestingwitnesses to prove the bond. The District Judge held that as amatter of law it was necessary to call both the attesting witnesses.He also expressed dissatisfaction with the evidence of the witnessescalled, and dismissed the action with costs.
In appeal, Domhorst, for appellant; De Saram, for respondent.October 22, 1896. Bonseb, C.J.—
The plaintiff in this case sues on a bond dated the 25th March,1886.
The bond was given by a Kandyan married woman, and pur- .ported to mortgage certain landed property to secure a sum of twohundred and fifty rupees and interest.
The bond was executed before a notary atBalangoda. The defend-ant on being sued set up a defence that the bond was a forgery.
The plaintiff called the notary and one of the attesting witnesses.It appears that the other attesting witness had left the district andhad not been seen for some time, so that his absence was accountedfor. Mr. Drieberg, the Acting District Judge of Ratnapura, heldthat as a matter of law it was necessary to call both the attestingwitnesses. I am unable to agree with that statement of the law.
A deed can be proved by the evidence of one witness, though as amatter of precaution it may be advisable in many cases to call allthe witnesses.
[His Lordship here discussed the facts of the case, and held thatthe deed was sufficiently proved, and allowed the appeal.]
In my opinion there is sufficient proof of the execution by thedefendant of the bond sued on. The notary and one of the attestingwitnesses have given evidence that the defendant did put he? mark
as mortgagor on the bond.
* * * * *,
ARNOLIS v. MUTU MENIKA