davits: "That in any case coming before ly unfair, or that he would knowingly disre him as judge involving a charge of an infrac-gard the law or the evidence to the prejudice tion of the local option laws, if any doubt of the affiant. It may, however, sometimes arose he would solve it in favor of the com- happen that conditions or circumstances are monwealth. *** I will solve all doubts such that the perfectly honest and competent in such cases in favor of the commonwealth, judge would in fact be unable to afford a litiand if parties go unwhipped of justice on gant such an absolute impartial trial as the the charge of violating the local option law law intends and requires. In the case under in my district, it will be by the verdicts of consideration the facts stated in the affidavit the juries, and if I were on the jury I do not import intentional unfairness or wrong; would find a way to convict them." It was but, if true, they might create an impression also charged in the affidavits that the pre- upon the affiant that the judge, however housiding judge was personally hostile to ap- est and pure his intentions may be, had bepellants, and that on account of such per- come so prejudiced that, imperceptibly to himsonal hostility, as well as on account of an self, he would be unable to give a fair and uncontrollable and unreasonable bias against | impartial trial." See, also, German Insurance the whisky business, he originated and instigated a movement on the eve of the holding of the local option election in Lebanon, Ky., to wit, the 9th day of March, 1907, to cause false charges to be made against ap pellant R. N. Wathen and other opponents of local option, and to cause their arrest on the false charge of conspiracy to bribe voters; and it was, in substance, stated that the arrest and humiliating treatment of appellant Wathen and others was a part of a scheme concocted and advised by the regular judge, that it was not done in good faith, but for the purpose of intimidating and de-man Insurance Company v. Landram, supra, terring the opponents of local option and as a means of carrying the election in favor of local option, that this unlawful arrest had been determined upon by the judge and others in connection with him, two or three weeks before the election, and was so stated by the judge to prominent citizens of that county.

It is due to the presiding judge to say that, in rendering his opinion on the motion, he controverted the material parts of the affidavits; but it is also true that we cannot consider this in passing upon the question. The law prohibits this. We must take the matters stated in the affidavits as true. This being so, we are of the opinion it was error for the court to refuse to vacate the bench. The accused has a right to be tried by a judge that is fair and impartial, and when he has good reasons to believe, supported by facts, that he will not afford him such trial, he should not be compelled to take chances of a trial before that judge in order that the truth of the matter might be developed, which may never be developed, because there are many ways that a partial judge may knife a party that he is trying without it appearing from the record, or without his being able to ascertain the fact. So when the fact is made to appear, by proper affidavits, the judge should then vacate, and it is reversible error if he does not. See Massie v. Commonwealth, 93 Ky. 588, 20 S. W. 704. In the case of Givens v. Crawshaw, 55 S. W. 905, 21 Ky. Law Rep. 1621, this court said: "We do not think it is necessary in all cases, or at all, in fact, that the affiant should state facts which

Company v. Landram, 88 Ky. 440, 11 S. W. 367, 592, Powers v. Commonwealth, 114 Ky. 237, 70 S. W. 644, 1050, 71 S. W. 494, and Kentucky Journal Pub. Co. v. Gaines, 33 Ky. Law Rep. 402, 110 S. W. 268. In the lastnamed case the court said: "We are of the opinion that the statements of this affidavit thoroughly disqualified the regular judge from presiding in the trial of the case. We do not mean to say that in our opinion these statements are true, for their truth cannot be inquired into in this action. All that the statute, as construed by this court in Ger

requires, is that the affidavit should allege such facts, which, if true, show that the trial judge will not, or may not, afford the litigant a fair and impartial trial of his case." We do not mean to hold that Judge Thurman may not properly preside in other prosecutions for the violation of the laws against the sale of whisky. We only hold that the facts here shown by the affidavit show such personal hostility as to make it improper for him to preside on the trial of these defendants.

The indictment in this case charged appellants, R. N. Wathen, Hans Mueller, and Charles Kobert, Sr., of the offense of selling spirituous liquors by retail without license to do so, by a sale of less than five gallons of whisky to one J. B. Thomas. The offense was alleged to have been committed in the month of January, 1908. It was shown by the proof, in substance, that appellants were distillers with their distillery located in Marion county outside of the city limits of Lebanon, and that, a short time prior to the date on which the alleged offense was committed, one Mike Lee approached appellant R. N. Wathen and asked him if he could sell him some whisky. Wathen answered that he could not sell him less than a barrel. Lee then said that some of his neighbors were pretty dry, and that he would see them and see if he could get up a club to take a barrel. Wathen said to him that he had better consult a lawyer and see whether or not he could legally do that. He did so, and the lawyer told him that it would not be a violation of the law. Lee's neighbors and friends gave

First, Mike Lee did not purchase the barrel which contained the whisky. Appellant re tained that and deducted the price of it, $1, from the amount of the check. Second, several transactions had taken place there of the same character, and the presumption is that Bullock in helping to divide the whisky was acting within the scope of his employment.

For these reasons the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.

each, and when he had obtained enough to | evidence tending to show this was truepay for the contents of the barrel he deposited it in a bank in Lebanon, and then went to the office of appellants, situated near the distillery, and there found the clerk of the company. He gave the clerk a check for the barrel of liquor, deducting $1, the price of the barrel which contained the whisky. The clerk then paid the tax to the government and had the barrel removed to what is known as the "free house." That afternoon or the next, Lee and the members of his club, including the witness J. B. Thomas, who received a gallon, appeared at the place and found one Bullock on the premises, who had WATHEN, MUELLER & CO. v. COMMONthe key to the free house, and he unlocked the door and delivered the barrel of whisky to Lee, and, as an accommodation, Bullock took the bung out of the barrel and furnished a rubber hose and a gallon measure, and from a list of names held by Lee the whisky was divided among the subscribers who had previously paid therefor. It was shown that appellants and their secretary did not know of this division of the whisky in the room referred to, and that the act of Bullock was not in the line of his employment, but that he acted only as an accommodation to Lee and those with him.

WEALTH.

(Court of Appeals of Kentucky. Jan. 26, 1909.) CRIMINAL LAW (§ 200*)-FORMER JEOPARDYIDENTITY OF OFFENSES-SALES OF LIQUOR.

Where a sale of a barrel of whisky, made to a person who had formed a club to buy the liver to purchasers whisky in less quantities whisky, was made to enable the seller to dethan he was allowed to do under the law, the sale was a separate offense as to the person who formed the club and each subscriber thereto, and hence a conviction for sale to one was not a bar to a prosecution for a sale to another.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 397; Dec. Dig. § 200.*] Appeal from Circuit Court, Marion County. "Not to be officially reported."

Wathen, Mueller & Co. were convicted of

unlawfully selling and retailing quantities of whisky of less than five gallons, and appeal. Reversed and remanded.

Samuel Avritt, Lafe S. Pence, and Lindsay & Edelen, for appellants. Jas. Breathitt, Atty. Gen., Tom B. McGregor, Theo. B. Blakey, R. L. Durham, and W. W. Spalding, for the Commonwealth.

It is conceded by appellee's counsel that if Lee had removed the barrel when he paid for it from the premises of appellants, and then divided it, appellants would not be responsible; but they contend that the manner in which the transaction took place shows & sale to each and all the persons who had subscribed for the whisky, that it was not a sale in good faith by wholesale, but that it was a sale by retail, and the means adopted was a devise to make it appear that it was a wholesale transaction. Section 1304, Ky. St., provides: "Any person who shall, without li- NUNN, J. The judgment appealed from cense so to do, sell or otherwise dispose of in this case was rendered on the trial of apany spirituous, vinous or malt liquors shall,|pellants under an indictment for the unlawfor each offense, be fined not less than twen- ful selling by retail of a quantity of whisky ty nor more than one hundred dollars." If the sale of this barrel of whisky' to Lee was made in good faith by wholesale, and not with the intentions by appellants or their agents of having any part in the distribution of the whisky among the subscribers for it, and the division was made without the knowledge or consent of appellants on their premises, and the act of Bullock was unauthorized by them, and not within the scope of his employment, and only as an accommodation to Lee and the subscribers, then it appears that appellant would not be guilty of selling whisky by retail; but, if the method or scheme was used to enable appellants to sell and deliver to purchasers whisky in fess quantities than five gallons, then they are guilty of the violation of the statute referred to. And there are some facts and

of less than five gallons. Mike Lee is the person to whom the alleged sale was made, and the whisky he received came from the same barrel referred to in an opinion this day delivered in a case styled the same as this one. 116 S. W. 336.

The same reasons for reversal are present-ed in this case as in that, with this additional one: Appellants' counsel contend that the conviction of appellants for selling J. B. Thomas whisky from the same barrel is a bar to the prosecution in this case. This is error. If it were a sale by retail to Thomas, it was also a sale to Lee by retail, as well as to each and every subscriber for the whisky. Each sale was a separate offense.

For the reasons given in the opinion referred to, the judgment in this case is reversed and remanded for further proceedings.

VARNEY v. CONNOLLY'S EX'R. CONNOLLY'S EX'R v. VARNEY. (Court of Appeals of Kentucky. Feb. 24, 1909.) 1. APPEARANCE (§ 25*)-REVIVAL-WAIVER. Where the foreign administrator of a defendant dying pending the action answered and the cause was tried on the merits, any informality in the proceedings to revive the action was waived.

judgment as a counterclaim or set-off against any judgment which Varney might recover against him, and, upon the rendition of the judgment for $250, the court ordered and adjudged the $250 to be a credit upon the debt of the defendant of $357.59, set out in his answer, set-off, and counterclaim; and he adjudged to the defendant the excess of his debt $107.59 over and above the $250. He further adjudged 2. INTEREST (§ 19*)-UNLIQUIDATED DEMANDS. that each party pay his own costs, and diAs a general rule, interest is not recover-rected that execution might issue against able on an account for unliquidated demands. plaintiff for the $107.59. Thereupon Strat[Ed. Note. For other cases, see Interest, Cent. ton & Whitt, the attorneys for plaintiff, apDig. 35; Dec. Dig. § 19.*] 3. JUDGMENT (§ 256*)—INTEREST-UNLIQUIDA- had a contract with the plaintiff, by the peared in court, and represented that they

[Ed. Note. For other cases, see Appearance, Dec. Dig. § 25.*]

TED DEMANDS.

Where, in an action for unliquidated damages, the court submitted to the jury the question of interest from the date of the institution of the suit, and the jury did not award interest, the court properly refused to enter judgment for interest prior to the rendition of the judgment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 453; Dec. Dig. § 256.*] 4. APPEAL AND ERROR (§ 48*)-JURISDICTION OF APPELLATE COURT-AMOUNT IN CONTRO

VERSY.

As $200 exclusive of cost and interest is required to give the Court of Appeals jurisdiction, it has no jurisdiction on appeal in a controversy involving the right of the attorney for plaintiff recovering a judgment for $250 to one-half thereof for his services.

terms of which they were to receive as compensation for their services a sum equal to 50 per cent. of such recovery as might be had, and they moved the court that they be given a lien upon the judgment for onehalf thereof. They further moved that they be awarded interest on the judgment from the date of the institution of the suit, to wit, August 1, 1897. Both motions were overruled, and they prosecute this appeal.

Some time after the institution of the suit Connolly died a resident of Ohio, and his administrator was appointed in Ohio. The pleadings in this case were lost, and had to be supplied by the commissioner. Some question is made as to whether or not the action was revived in time, but, inasmuch as the foreign administrator answered and the case was tried out on its merits, it is evident that any informality in the proceeding, looking to a revivor, was waived, and a consideration of that question will not now be entered into. The only

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 226–232; Dec. Dig. § 48.*] Appeal from Circuit Court, Pike County. "Not to be officially reported." Actions by L. H. Varney against W. A. Connolly, prosecuted after his death against his executor, and by W. A. Connolly's executor against L. H. Varney, in which Stratton & Whitt, attorneys for plaintiff, claim a lien on the judgment recovered by plaintiff in the first action. From the judg-chancellor erred in refusing to allow inment in each case, plaintiff in the first case appeals, and plaintiff in the second case appeals, and, from a judgment denying relief to the attorneys, they appeal. Judgment in each case affirmed, and the appeal of the attorneys dismissed.

M. C. Kirk, C. M. Whitt, and P. B. Stratton, for appellant Varney. M. C. Kirk and J. S. Cline, for appellee Connolly. C. M. Whitt and P. B. Stratton, for appellee Var

pey.

LASSING, J. In 1897 L. H. Varney instituted a suit in the Pike circuit court, wherein he sought to recover of W. A. Connolly the sum of $700 for the destruction of certain crops of which he claimed to be the Owner. The case was not finally tried until in August, 1908, at which time a judgment was entered in favor of Varney for $250. W. A. Connolly between the date of the institution of the suit and the rendition of the judgment had recovered a judgment against Varney for $357.59, and he pleaded this

questions presented by counsel are the two

above indicated, to wit: Whether or not the

terest on the judgment recovered by plaintiff from the date of the institution of his suit to the date of the rendition of the judgment; and, second, whether or not plain

And,

tiff's lawyers are entitled to any portion of
the judgment as a fee. As a general rule,
interest is not recoverable upon an account
for unliquidated damages or demands. Wil-
liams v. Hay & Sweeney, 10 Ky. Law Rep.
319, and Tobin v. South's Administratrix,
36 S. W. 1030, 18 Ky. Law Rep. 350.
in any event, this question should have
been, and no doubt was, submitted to the
jury under proper instructions, and the
jury having decided adversely to plaintiff
upon this point, the court did not err in
refusing to enter judgment for interest prior
to the date of the rendition of the judg-
ment. This being true, the only remaining
question is as to the right of plaintiff's at-
torneys to a portion of the $250 judgment
as compensation for their services.

Under the contract as alleged, they are entitled to a sum equal to one-half of this

Where counsel in a civil case submit their The judgment is affirmed as to the plain-own instructions, the court may, if no objectiffs, and the appeal is dismissed as to tion is offered, give the instructions as subtheir attorneys, and the judgment in the case of W. A. Connolly's Ex'r v. L. H. Varney is affirmed.

petition were caused by the incompetency and inexperience of Niles Morse, the sawyer, agent, and employé of the defendants while he was engaged in operating said sawmill.” Counsel for plaintiff asked the court to give the following instructions, which were refused: "(a) If the jury believe from the evidence, whilst in the performance of his duties as off-bearer in defendant's sawmill, the plaintiff was by the gross negligence of the defendants' sawyer and employé, Niles Morse, caused to be violently drawn through a band saw of defendants' sawmill, and thereby injured, they should find for the plaintiff such sum in damages as will fairly compensate him for his mental and physical suffering, if any, for his loss of time, if any, and for his physical disability, if any, and for his permanent impairment of his power to earn money, if any; also for any physical suffering that it is reasonably certain from the evidence he will endure in the future, not to exceed $25,000, the amount claimed in the petition.

"(b) The court instructs the jury that gross negligence is the failure to take such care as a person of common sense and reasonable skill in like business, but of careless habits, would observe in avoiding injury to his own

or similar danger to the plaintiff on the occasion under consideration."

which he had been employed, the defendants as set forth in the petition and amended by and through the gross negligence of their agent, employé, and sawyer, Niles Morse, in operating said steam sawmill, without warning, but unexpectedly to this plaintiff, suddenly, violently, and forcibly put the carriage upon which logs are conveyed against the saw to be cut into lumber, into motion, thereby throwing plaintiff down upon said carriage, and causing him to be rapidly carried with said carriage on to and against the saw, so that he, this plaintiff, by the gross negligence and carelessness of the defendants as aforesaid, was sawn, cut, and bruised, to his great physical and mental pain, suffering, and anguish, to his serious and permanent injury and damage in the sum of $25,000." A general demurrer to the petition having been overruled, the defendants filed an answer, in which, after admitting that Niles Morse was their sawyer, they denied specifically all the averments of the petition, and further pleaded that the injuries were received by the plaintiff by reason of his contributory negligence. In a reply the affirmative matter in the answer was controverted. On January 7, 1908, the plantiff filed an amended petition, which by leave of court he withdrew on January 22, 1908, and filed in its place the following amended petition: "The plaintiff for amend-person or life under circumstances of equal ment to his original petition herein states that since the last term of this court he has learned, and he now alleges, and states it to be a fact, that Niles Morse, the sawyer of the defendants, through whose gross negligence the injuries alleged to have been sustained by the plaintiff in the petition were caused, was a reckless, inexperienced, and incompetent sawyer, and unfit to perform the duties that devolve upon a competent sawyer of a sawmill, and he states that said Niles Morse's incompetency and unfitness for said position as a sawyer, and to perform the duties of a sawyer, was well known to the defendants, or could have been known to them by the exercise of ordinary care, and the plaintiff says he did not know that Niles Morse was a reckless, inexperienced, and incompetent sawyer, or that he was unfit for said position or to perform the duties of a sawyer until he learned it as above alleged, and the plaintiff says he did not have equal means with the defendants of knowing of said Niles Morse's incompetency and unfitness to perform the duties of a sawyer; that the said Niles Morse, the sawyer of defendants, was superior in authority to the plaintiff in the operation of said sawmill." The averments of this amended pleading were denied by an answer. With the pleadings in this condition, the parties went to trial, and upon the conclusion of all the evidence the plaintiff on January 29th filed the follow-lieve from the evidence that the plaintiff by ing amended petition: "For amended petition herein and by leave of court, the plain

Thereupon the court upon its own motion instructed the jury as follows:

"(1) The court instructs the jury that if they believe from the evidence that Niles Morse, the sawyer in defendants' sawmill at the time plaintiff claims he was injured, was an incompetent sawyer, and that the defendants knew of his incompetency, or by the exercise of ordinary care could have known of his incompetency, and they further believe from the evidence that the plaintiff was injured by and through the incompetency of the said Niles Morse as a sawyer operating said sawmill, they should find for the plaintiff such sum in damages as will fairly compensate him for his mental and physical suffering, if any, for his loss of time, if any, and for his physical disability, if any, and for the permanent impairment of his power to earn money, if any, also for any physical suffering that it is reasonably certain from the evidence he will endure in the future, not to exceed $25,000.

"(2) Unless the jury believe from the evidence that Niles Morse was incompetent, and that such incompetency caused the injury, they should find for the defendants.

"(3) Although the jury may believe from the evidence that Niles Morse was an incompetent sawyer, yet if they further be

his own carelessness or negligence contributed to his injury but for which said contribu