OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER-Affirming. Appellant, Mike Peters, was arrested on a warrant issued by the police judge of Richmond, charging him with having in his possession in Richmond, Kentucky, local option territory, whiskey for the purpose of selling same. On the trial in the police court the jury found him guilty and fixed his punishment at a fine of $50 and ten days in jail. From that judgment he appealed to the Madison Circuit Court. The jury there found him guilty and fixed his punishment at a fine of $100 and 50 days in jail. From the judgment entered on the verdict this appeal is prosecuted. The evidence heard at the trial is, in substance, as follows: J. H. Allman, an officer of the city of Richmond, testified that he had received information that Amos Woolrey had gotten off the train at Red House with some whiskey. He and two of his deputies went out the Red House pike to the railroad crossing, a point within the city limits of Richmond. In a short time Peters and Woolrey came along in a buggy. He stopped them and asked if they had any whiskey. Peters said they had none, but when they went to search the buggy Peters admitted they had whiskey. J. D. Dykes testified that he was with Allman when the arrest was made. He heard Peters say he had no whiskey, and heard Woolrey say "Yes, we have whiskey." It was admitted that Richmond was local option territory. Appellant, Peters, testified that on the 8th or 9th of May he heard Amos Woolrey say he was going to Winchester. Told him he wanted him to bring four quarts of Old Elk. He said he would not bring it to Richmond, but that if witness would meet him at Red House he would. Witness gave him the money and went down to Red House where Woolrey gave him the four quarts. Witness got it for his own use and did not intend to sell it. Told Allman and Dykes he did not have any whiskey for them. He hired a horse and buggy and drove six miles to meet Woolrey and get the four quarts of whiskey. Amos Woolrey testified that on May court day last he saw his brother-in-law, who resided on Red Lick in Madison County. They agreed that he should go to his brother-in-law's home for the purpose of going fishing. His brother-in-law asked him to bring something to drink, and he promised him to do so. His brother-inlaw wanted a gallon for himself. Witness arranged to go to Winchester, and mentioned the fact in the business house of Peters. Peters asked him to bring four quarts of Old Elk. Told Peters he would not bring any whiskey to Richmond, but that if he would meet him at Red House he would bring it. Peters agreed to meet him. Witness went to Winchester and got for himself eight quarts of Old Tar and four quarts of Kentucky Pride. He bought for Mr. Peters four quarts of Old Elk. When he reached Red House he delivered the four quarts to Peters and got in the buggy with him. They were arrested as soon as they got in town. Witness did not expect to stop in town. He lived in the country east of Richmond. Peters agreed to carry him home in the vehicle in which he met him. It is earnestly insisted that the foregoing evidence is wholly insufficient to sustain a conviction. In this connection it is argued that the defendant himself swears that he purchased the whiskey for his own use, and that there is not a single circumstance to show the contrary. The further point is made that the expense of the horse and buggy would more than offset any profit that he could have made on the whiskey. It must be remembered, however, that in determining the purpose of the defendant in a case like this the jury are not confined to his testimony alone, but have a right to take into consideration all the facts and circumstances surrounding the transaction. It must be admitted that defendant's companion purchased a quantity of whiskey far in excess of even the extraordinary demands of an exceedingly dry fisherman. He was not willing to deliver the four quarts to the defendant, but required the defendant to drive six miles in the country to get the whiskey, and to agree to carry him to his home out in the county. While it may be true that the legitimate profit on a sale of four quarts of whiskey would not have been greater than the hire of a horse and buggy, yet those engaged in "boot-legging" are not content with the ordinary profit, but frequently charge two and three prices for the whiskey which they sell. When we take into consideration the quantity of whiskey involved, the secrecy attending the transaction, the trouble and expense which the defendant was willing to undergo in order to secure the whiskey, and the fact that when arrested he denied having the whiskey in his possession, we conclude that these circumstances are sufficient to justify the conclusion on the part of the jury that he had the whiskey in question in his possession for the purpose of sale in the city of Richmond. There being sufficient evidence to sustain the verdict, and the instructions not being subject to complaint, it follows that the judgment should be affirmed, and it is so ordered. 1. 2. Thornton v. Thornton. (Decided September 18, 1913). Appeal from Marion Circuit Court. Arbitration and Award-Setting Aside Award. It is the tendency of the courts to uphold awards upon sound principles of public policy; but one cannot be sanctioned that was rendered in a proceeding where one party has had no opportunity to controvert the evidence of his adversary taken in his absence and transcribed by a partisan and relative of the other party, and especially where the award is principally based on that evidence. Arbitration and Award-Setting Aside Award Made Without Notice and by Sole Arbitrator. A sole arbitrator should not be permitted to make an award based upon evidence taken without notice to the party against whom it was used. O'REAR & WILLIAMS and H. P. COOPER for appellant. JOHN MCCHORD and C. C. BOLDRICK for appellee. OPINION OF THE COURT BY JUDGE TURNER-Reversing. This is a common law action by appellee, asking a judgment on an award; the answer of the defendant seeks to have the award set aside upon the ground that the arbitrator undertook to pass upon things which were not submitted in the articles of agreement; and upon the further ground that at two out of the three meetings held by the arbitrator he had no opportunity to be present or to be heard, and at such meetings he had no representative present, and that appellee presented claims at such meetings of which he had never had notice until after the award was made, and that at one of the said meetings depositions of two witnesses were taken, which fact he did not know until after the award; that the award was principally based upon the evidence of these two witnesses which was taken at a secret meeting of which he had no notice, and that he had no opportunity to cross-examine either of them, and in effect pleads that for these reasons the award was procured by fraud. The article of agreement is as follows, to-wit: "THIS AGREEMENT OF ARBITRATION this day entered into by and between W. A. Thornton party of the first part, and G. K. Thornton party of the second part, "Witnesseth: That whereas there is a controversy and disagreement between the parties of the first and second part in relation to the adjustment and settlement of the accounts of said parties and their respective services in raising a crop of about fifteen acres of tobacco by said parties on the farm of T. H. Thornton in Marion County about the year 1896 and also for work claimed to be performed by the second party for the first party in the tobacco transaction and also for other work in the year 1896 and 1897. "It is now hereby agreed by the parties hereto that Prentice Weatherford shall hear the entire evidence in relation to all questions touching the raising, handling and sale of said tobacco and work by said Geo. K. Thornton that may be offered by either party and from said evidence return his award in writing to each of the parties hereto. "Each of the undersigned parties agree to abide by the award of said Prentice Weatherford .adjusting the matters hereinabove mentioned. "Given under our hands this December 21, 1911." The award is as follows: "The within matter having been submitted to me to adjust and settle between the parties herein named, I did on the 14th day of March, 1912, call the parties together at Bradfordsville, Ky., and after fully considering and calculating on all papers, accounts and evidence submitted by the parties, decide that the following amounts were due and payable to G. K. Thornton from W. A. Thornton at the dates given for each amount, viz.: On the sale of tobacco crop, February 15, 1899 For work for self and team, year 1897 $100.00 297.25 64.50 19.75 And that the said G. K. Thornton should have credit for said amounts at same dates on any claim or claims that said W. A. Thornton held against him at said dates or that he be allowed interest on these amounts to the date of this settlement." The judgment of the circuit court upheld the award throughout except as to the item of $19.75, which was disallowed, and from that judgment this appeal is prosecuted. Appellant testified that at the time the articles of agreement were entered into that there was an agreement between him and appellee that the metings of arbitration were at no time to interfere with some important business engagements which might at any time call appellant away from home, and this is substantially admitted by appellee. The first meeting was held on the third day of January, 1912, at which time the statements of both appellant and appellee were heard, but the matter was not concluded because appellant was compelled to leave home on business. At the time of or before the first meeting there seems to have been some sort of understanding or agreement between the parties by which Breeding was to be present at the arbitration upon behalf of appellee, and Newbolt upon behalf of appellant, and they were each present at the first meeting. At the conclusion of the first meeting there was a tentative agreement by which the parties were again to meet on the first day of March; but, a day or two before the first day of March the arbitrator was notified, as he states, over the telephone that appellant had been called to Louisville on important business, and could not be present at that time; but notwithstanding this notice and in violation of the agreement between these two brothers that the arbitration meetings were were at no time to interfere with appellant's important business engagements, he proceeded to hold the meeting, and to take the depositions of two witnesses, in absence of appellant or any representative of his; for it appears that even his friend, Newbolt, was not present and had had no notice of this meeting, but that in his stead one Avritt, an uncle of appellee's wife was there, and actually took down in writing the statements of the two witnesses introduced by appellee. Appellant testifies that he never knew of these depositions, or of the fact that they had been taken, until after the award had been made, and this evidence of his is uncontradicted. At the last meeting, on the 14th day of March, neither appellant nor appellee were present, they having been |