Breckenridge Circuit Court.
October term, 1859
The Commonwealth of Kentucky. Plaintiff
Against Indictment
Henry. B. MargoleyesDefendant

The Grand Jury of Breckenridge County, in the name and by the authority of the Commonwealth of Kentucky accuse Henry. B. Margolyes a tavern keeper, of the offense of breaking and violating his tavern obligation and bond, committed as follows, viz: The said Henry B Margolyes having obtained a license to keep a tavern in the County aforesaid, with Edward Pate, as his surety on the 16^th day of August 1858. entered into an obligation in substance as follows:

"Tavern Keeper's bond,
The Commonwealth of Kentucky

Whereas, Henry. B. Margoleys has obtained a license to keep a tavern near Bennettsville in the County of Breckenridge. Now, we Henry B Margoleys, principal and Edward Pate his surety, do hereby covenant and agree that the said Henry. B. Margolyes, shall continually find and provide in said Tavern good wholesome cleanly lodging and diet for travellers, and stabling and provender, or pasturage for horses or mules, during the period the license remains in force; and that he will not suffer any gaming in his house or on his premises, and will not suffer any person to tipple or drink more than is necessary, in his house or on his premises, or at any time suffer any scandalous or disorderly behaviour in his house or on his premises.

Given under our hands this 16^th day of August 1858.

H. B. Margolyes.
Ed. Pate."

Attest

W. P. Baker. D C.

Which said tavern obligation and bond, a copy of

which is returned herewith, the grand Jury aforesaid, say the s'd Henry B Margolyes, on the 15^th day of October 1858 and on divers other days since, before and after the 16^th day of August 1859, in the County aforesaid, did break & violate by unlawfully failing, at the times aforesaid, and while his aforesaid license,- to keep a tavern- was in force to continually find and provide in his said tavern good wholesome cleanly lodging and diet for travellers and stabling and provender or pasturage for horses or mules; and by the said Henry. B. Margolyes, at the times aforesaid, suffering in his said tavern house & on his premises, and by his suffering at such times, various persons to tipple and drink more than was necessary in his said house and on his premises; and by suffering at the times aforesaid, scandalous and disorderly behaviour in his said house and on his premises, against the peace and dignity of the Commonwealth of Kentucky

Cicero Maxwell Attorney for The Commonwealth.

Information given by Edward Pate Jr.

Summon

Oliven Spencer

Nathaniel Newman.

The following Judgment was entered at October Term 1860. viz:
Be it remembered that on the calling of this cause the Defendant filed his affidavit marked No 3. made part hereof, viz: The Defendant in the above prosecution moves the Court for a new trial, first: because he was surprised on the trial in the failure of Oliver Spencer to appear whose evidence was verry material

to his defense. and that he believed when he went into trail that said Spencer was present,

He states further that since the said trial he has discovered evidence material to him which he had no knowledge of on the former trial and which he could not with due diligence have produced at the trial, He state- that he can prove by one Samuel Rice that the defendant had made arrangements with said Rice to have the use and occupation of his (Rice's) stable in the year 1858. for the purpose of stabling such horses as he might by law be required to entertain, and he further states; that at different times he has seen corn and other provender in sacks and barrels, which he kept as he believed for horse food, that he can prove by one Talbott Newton that the defendant kept a quiet orderly house, and that the witness eat at his house, and that he the Defendant fed him well, and that he kept in his house a sufficient number of beds & bedsteads, to accomodate with lodging all persons who might favor him with their patronage or who would be likely to stop with him, That he can prove by Joseph Taul that he visited the tavern of the Defendant, and took a meal with him, and that he supplied him with plenty to eat and of good quality- and that he never heard any complaint against the defendants until the Indictment was found against him in this Court, That he can prove additional fact- by one James Chancellor whose affidavit is herewith filed and made part hereof" and moved the Court to grant him a new trial, and on the trial of said motion read the affidavits of Samuel Rice, marked No 1. "Samuel Rice for affidavit says that the defendant H. B. Margolyes made arrangement with him, during the time he was keeping tavern, that is to say in the

year 1858. to use and occupy affiants stable near to the said Tavern for the purpose of stabling- horses of such persons as might stop at the said tavern as guests, and that he gave the said Margolyes the privilege to use the said stable whenever he needed it.

He states further that at different times, he has seen corn and other provender in the sacks and in barrels which he kept as he informed affiant, and as affiant believes, for horse feed." Also the affidavit of James. T. Newton marked No 2. "The affiant Talbert Newton states that the Defendant H. B. M^cGargolyes while he kept tavern in said County that he kept a quiet and orderly house that the affiant eat at his tavern house and was well fed and taken care of while he remained there, that Defendant kept in his house a sufficient number of beds to accomodate such persons as would be likely to stop at his Tavern that he never heard any complaint against the Defendant until the Indictment was found against him in this Court." Also the affidavid of James Chancellor marked No 4. "James Chancellor states that he was clerk for the defendant for more than three months before the finding of this Indictment, and that he always saw plenty of provender for beasts, and plenty of beds and provisions for the accodation of all his guests, and that he never heard any complaint for a want of either" And the Court overruled the motion for the new trial, to which Judgment of the Court, the Defendant excepts.

Thereupon the Attorney for the Commonwealth read the notice to the said Defendant & Edward Pate make part hereof: "Mr Henry. B. Margolyes a tavern keeper, and Mr Edward Pate his surety: Whereas at the present April Term 1860 of the

Breckenridge Circuit Court a trial was had in the case of the Commonwealth of Kentucky against the aforesaid Henry B Margolyes, a tavern keeper, for the offense of breaking and violating his tavern obligation and bond, dated the 16^th day of August 1858 in which you Mr Edward Pate was his surety, in which trial the jury swon to try the cause returned the following verdict, viz: 'We of the Jury find the defendant guilty of violating his tavern bond as charged in the Indictment in not furnishing sufficient stabling and provender for horses or mules during the period his license remained in force

Nathan Board foreman'

And judgment in accordance with the verdict was rendered thereon: Now this is to notify you, Mr Henry B Margolyes principal and you Mr Edward Pate surety in said tavern obligation and bond, that I, as Attorney for the Commonwealth aforesaid will on the second day of the next October Term 1860, of the Breckenridge Circuit Court move the Court aforesaid to render judgment against you for the sum of three hundred dollars, the penalty denounced by law for the violation of said bond," April 12^th 1861.

Cicero Maxwell Attorney for the Commonwealth aforesaid.

Executed on Henry B Margolyes and Edward Pate by delivering to each of them a true copy of the within summons. July 27^th 1860. F. Fraize D S.

For Thomas Adkisson S. B. C."

And moved the Court for judgment on the tavern bond of Deft for the amount of said bond, and read the Judgment against Margolyes' trial, verdict, and Judgment of the Court thereunder, the said Edward. Pate filed his answer made part hereof: The Defendant.

Pate for answer to the motion made against him says that Plaintiff aught not recover against him because he says that the Judgment under which his principal was convicted is defective in many particulars, because his said principal did keep a good and law sufficent Tavern house, well provided with good and sufficient provender food and lodging for man & horse during the period whole time he kept said Tavern & because he did not permit gaming on his premises during the time, nor did he permit persons to assemble and drink to excess or suffer disorderly behaviour in his house or premises at any time while said license was in force — For further answer he says that the law is unconstitutional which authorizes a Judgment him as surety for the alleged default of his principal without allowing him a trial by Jury and the right to controvert the guilt of the principal" the Attorney for the Commonwealth demurred to said answer and the Court sustained the demurrer to which ruling of the Court said Pate excepts, and thereupon the Court rendered Judgment on said bond, to which said Margolyes & Pate except, and pray on appeal which is granted,

A Copy —

Att Geo W Jolly Deputy Clerk
Breckenridge Circuit Court.

Commonwealth of Ky
vs } Copy of Petⁿ & Judg^t
Henry. B. Margolyes &^c

Breckinridge Cir. Ct.

Remitted
B. M.

$300 } Tavern Bond
Iss^dNov 27. 1861