Charles Arnold White, Kt., C.J.

1. The facts necessary for determining the question which has been argued in this appeal may be put quite shortly thus : In February 1873 there was a mortgage of a house by the Plaintiffs vendor to the 1st defendants predecessor in title (Exhibit I). In June of the same year there was a transaction (Exhibit II) between the same parties under which a further advance was made by the 1st defendants predecessor in title. In 1889 there was a sub-mortgage by the 1st defendants predecessor to the and defendants predecessor in title. In 1904, the plaintiff purchased the equity of redemption. With regard to Exhibit II the Munsif held that the instrument was a mortgage and decided in favour of the 2nd defendant. The lower appellate court took the view that it was neither a charge nor a mortgage and accordingly decided against the 2nd defendants contention that he was entitled to be redeemed in the plaintiffs suit.

2. Before passing to the question of the legal effect of Exhibit II, I propose to say one or two words with regard to the general question which was raised and that is to say, as to the power or right of the 2nd defendant to insist upon his bei