1. The plaintiff was examined-in-chief. The cross-examination was not finished when the case was adjourned and he fell sick and became unable to appear again for cross-examination. There was an application for the issue of a commission to cross-examine him; but no commission was issued and the plaintiff died before the next hearing. There is no other evidence on record on the plaintiff's side to prove the pro-note sued on, except this incomplete examination of the plaintiff. It is contended before us that such evidence is wholly inadmissible and that the plaintiff's suit must, therefore, be dismissed. Without going so far as to hold that it is altogether inadmissible for any purpose, because the cross-examination was not completed (as to which see Wigmore's Evidence, Vol. II, p. 1742) we think it clear that the principle underlying Section 33 of the Evidence Act points to the conclusion that such evidence ought not ordinarily to be acted upon--J. Boisagomoff v. The Nahapiet Jute Co. Ltd. 5 C.W.N. 30. But in the present case it may be that other evidence is available to prove the plaintiff's case, as there are attesting witnesses to the pronote.
2. We will, therefore, set aside the decree of the District Munsif and remand the suit for a fresh disposal according to law. Further evidence on both sides may be admitted. The costs in this Court will abide the result.