JUDGMENT

Sale, J. - This is a suit brought by the plaintiff to recover certain sums alleged to be due by the defendant to the plaintiff by virtue of an Indemnity contained in a verbal agreement set out in the 2nd paragraph of the plaint. The plaintiff alleges he carried on the business of a vendor of liquor in certain shops in Calcutta, and that in 1894 he was desirous of relinquishing his business in the shop, 148, Bow Bazar Street, and he entered into agreements with the defendant and one Basanto Coomar Shaha whereby the plaintiff was to sell the stook-in-trade of the shop and furniture to the defendant and Basanto Coomar Shaha, and that thereafter the defendant Basanto Coomar Shaha should carry on the business of vendors of liquor on their own account and responsibility. It is stated that the object of the agreement was to enable the defendant and Basanto Coomar Shaha to sell the liquor without obtaining a license, and in order to carry out this purpose, this agreement was entered into and the defendant and Basanto Coomar Shaha undertook not to contract any debt in the name of the plaintiff, and further that they were to keep the plaintiff and his estate and effects indemnified against all claims and demands against the shop, and that in further consideration of the liberty to use the name of the plaintiff to carry on the business the defendant and Basanto Coomar Shaha agreed to pay the plaintiff Rs. 100 per annum. The plaintiff alleges, the agreement was carried out and that he paid off all existing debts in the business carried on in the shop, and sold to the defendant and Basanto Coomar Shaha all the goods, stock-in-trade and entire furniture at a valuation, and made over the shop from July 1894 to the defendant and to Basanto Coomar Shaha, who thenceforward carried on the business as vendors of liquor in the plaintiff's name, but on their own joint account and responsibility. The business was carried on by the defendant and Basanto Coomar Shaha up to the end of June 1896, and disputes having arisen between them, the latter severed his connection with the business and the defendant carried on the business from the 1st July 1896 to the 31st March 1902. The plaintiff alleges that throughout this period the terms of the agreement were adhered to, except that the annual payment was increased from Rs. 100 per annum to Rs. 25 and then Rs. 30 per month, and finally to Rs. 50 per month. The plaintiff further alleges that Rs. 50 per month was paid up to January 1902, and that the instalments for the months of February and March are still due. The plaintiff alleges, that during the time the defendant carried on tile business on his own account and responsibility, he contracted debts contrary to the terms of the original agreement, in the plaintiff's name and those debts he (the plaintiff) has had to pay. The plaintiff therefore claims these amounts and also expenses which he has incurred in respect of suits instituted for recovering the same from him, and also the instalments of Rs. 50 per month for February and March, altogether amounting to Rs. 2,725-12-6.

2. The defendant in his Written statement denies all the material allegations in the plaint, and denies he has carried on the business on his own account either solely or jointly with Basanto Coomar Shaha. He says he had only interfered to assist his brother the plaintiff, and the business was throughout done for the plaintiff and in his name, and that the plaintiff is responsible for all debts and that he has advanced money to the plaintiff for the business, and states that there is a sum exceeding the plaintiff's claim due to him in respect of advances made and expenses incurred by the defendant in carrying on the business on the plaintiff's account. At the hearing the defendant raised a defence in the nature of a demurrer. It is not suggested that the plaintiff has been taken by surprise by the defence, nor has any application to adjourn the suit on that ground been made.

3. T