Declaration

State of Illinois, Coles County, Coles Circuit Court, October Term A.D. 1865

Charles Nabb plaintiff by Henry Read and Steele his attorneys complains against John O. McClellan defendant who has been summoned to answer him in a plea of trespass on the case.

For that whereas heretofore to wit on the 2^nd day of June A.D. 1865 to wit at the County of Coles aforesaid, the defendant and one ______ Mason, (whose given name is unknown) then and there fraudulently intending to injure and defraud the plaintiff in this behalf confederated together and then and there by means of certain false and fraudulent representations made by the said defendant and the said Mason who were so confederated as aforesaid to wit that the said Mason was one of a firm in Chicago doing business under the name, firm and style of Walker, Mason and Co. and that said firm was engaged in the manufacture of agricultural implements and that said firm had shipped to the city of Mattoon a large amount of said manufactured implements as aforesaid and that said implements so shipped as aforesaid were at the depot in the city of Mattoon aforesaid and that the said Walker, Mason and Co. had appointed the defendant to act as their agent in the sale of said agricultural implements and that for the purpose of paying the freight on said agricultural implements, the said Mason was desirous of negotiating and discounting to the plaintiff a certain good, genuine, and true promissory note which the said Mason and the said defendant then and there exhibited to the plaintiff and which said promissory note purported upon its face to have been executed by one Matthew P. Threlkeld on to wit the second day of June 1865 and by which said promissory note the said Threlkeld thirty days after the date thereof promised to pay to the said Walker, Mason and Co. for value received the sum of one hundred and eighty dollars, and which said promissory note, the said Mason and the defendant by means of the false and fraudulent representations aforesaid to wit at the county aforesaid then and there negotiated to the plaintiff and then and there induced the plaintiff to receive and pay for said note the sum of to-wit one hundred and eighty dollars and the plaintiff avers that said note so transferred and negotiated by the said Mason and the said to the plaintiff was false, forged and counterfeit and that the said Threlkeld never executed the same and that there was no such firm as Walker, Mason and Co. carrying on and doing business in the city of Chicago as aforesaid and that there were no agricultural implements belonging to said firm at the depot in the city of Mattoon and that the said Walker, Mason and Co. had not appointed the defendant to act as their agent in the sale of agricultural implements aforesaid but that all and each of said representations so made by the said Mason and the defendant as aforesaid were false and fraudulent, the defendant well knowing at the time that said representations were false and that said note was false, forged, and counterfeit and that the said Mason and the said defendant then and there fraudulently confederated together and then and there procured and induced the plaintiff by means of said false and fraudulent representations to receive to pay for said note as true and genuine whereby the plaintiff has been injured.

And for that whereas heretofore to wit on the second day of June A.D. 1865 to wit at the county aforesaid the plaintiff then and there residing in the city of Mattoon in said county and then and there for along since before the commission of the grievances hereinafter complained of was acquainted with the defendant and then and there confided in the defendant–the defendant then and there well knowing the premises–fraudulently and covinously combined and confederated with one ___ Mason (whose given name is unknown) for the purpose of injuring and defrauding the plaintiff in this behalf and then and there went with the said Mason to the house of the plaintiff and then and there introduced the said Mason to the plaintiff as one of the firm of Walker, Mason and Company which said firm the defendant then and there represented to the plaintiff were engaged in the manufacture of agricultural implements at the city of Chicago and being so engaged they had shipped to the city of Mattoon to wit at the county aforesaid a large amount of said agricultural implements for the purpose then and there of selling the same and that said agricultural implements were then at the depot in the city of Mattoon aforesaid, and that the said Walker, Mason and Company had appointed the defendant their agent for the purpose of selling said agricultural implements and that the said Mason had a certain good, true and genuine promissory note on one Matthew P. Threlkeld which the said Mason was desirous of negotiating and discounting to the plaintiff for the purpose of raising money so as to enable the said Mason to pay certain freights which were due on said agricultural implements so at the depot to wit at the city of Mattoon as aforesaid and by means of representations so made by the defendant to the plaintiff as aforesaid the said Mason then and there negotiated to the plaintiff what purported on its face to be a certain other promissory note executed by one Matthew P. Threlkeld to Walker, Mason and Co. by which said promissory note the said Threlkeld purported to have promised to pay the said Walker, Mason and Company thirty days after the date thereof for value received the sum of one hundred and eighty dollars and which said promissory note bore date June 2^nd 1865 and which said promissory note the plaintiff then and there received of and from the said Mason by means of the representations of the defendant as aforesaid and then and there paid the said Mason for the same the sum of to wit one hundred and eighty dollars and the plaintiff avers that said note so transferred and negotiated by the said Mason to the plaintiff was false, forged and counterfeit and that the said Threlkeld had never executed said note and that there was no such firm as Walker, Mason and Company manufacturing said agricultural implements carrying on and doing business in the city of Chicago aforesaid and that there were no agricultural implements belonging to said firm at the depot in the city of Mattoon, and that the said Walker, Mason and Company had not appointed the defendant to act as their agent in the sale of the agricultural implements aforesaid but that all and each of said representations so made by the defendant as aforesaid were false and fraudulent and the defendant well knowing the premises and that the plaintiff then and there confided in him and in the representations so made as aforesaid by him fraudulently and covinously confederated with the said Mason to induce the plaintiff to receive said note as true and genuine and pay the said Mason therefore, whereby and by means thereof the plaintiff hath been greatly injured.

And for that whereas heretofore to wit on the second day of June A.D. 1865 to wit at the county aforesaid the plaintiff and defendant then and there residing in the city of Mattoon to wit in said county and the plaintiff then and there for a long time before the commission of the grievances, hereinafter mentioned having been acquainted with the defendant, then and there confided in the integrity of the defendant, the defendant then and there well knowing the premises fraudulently, and covinously combined and confederated with one ___ Mason (whose given name is unknown) for the prupose of injuring and defrauding the plaintiff in this behalf and then and there went with the said Mason to the house of the plaintiff and then and there introduced the said Mason to the plaintiff and the said Mason then and there in the hearing and presence of the defendant represented to the plaintiff that that he the said Mason was one of the firm of Walker, Mason and Company, which said firm the said Mason then and there represented to the plaintiff to be engaged in the manufacture of agricultural implements at the city of Chicago and being so engaged they had shipped to the city of Mattoon to wit at the county aforesaid a large amount of agricultural implements and that said agricultural implements were then to wit at the time of making said representations at the depot in the city of Mattoon aforesaid and that the said Walker, Mason and Company had appointed the defendant as their agent for the purpose of selling said agricultural implements and that he the said Mason had a certain good true and genuine promissory note on one Matthew P. Threlkeld which he the said Mason was desirous of negotiating and discounting to the plaintiff for the purpose of raising money so as to enable the said Mason to pay freight on said agricultural implements so shipped to the city of Mattoon as aforesaid and the said Mason then and there and in the presence of the defendant exhibited to the plaintiff a certain other promissory note which upon its face purported to have been executed by one Matthew P. Threlkeld on to wit the second day of June A.D. 1865 and by which said promissory note the said Threlkeld thirty days after the date thereof (purported to have) promised to pay to the said Walker, Mason and Company for value received the sum of one hundred and eighty dollars and which said promissory note the said Mason by means of said false and fraudulent representations as aforesaid and by means of combining and confederating with the defendant for the purpose of cheating and defrauding the plaintiff as aforesaid to wit at the county aforesaid then and there negotiated to the plaintiff and then and there induced the plaintiff to receive and pay for said note the sum of to wit one hundred and eighty dollars and the plaintiff that avers that said note so transferred and negotiated by the said Mason to the plaintiff was false, forged and counterfeit and that the said Threlkeld had never at any time executed the same and that there was no such firm as Walker, Mason and Company carrying on and doing the business aforesaid in the city of Chicago aforesaid and that there were no agricultural implements belonging to said firm at the depot in the city of Mattoon aforesaid and that the defendant had not been appointed by the said Walker, Mason and Company as their agent in the sale of agricultural implements aforesaid but that all and each of said representations so made by the said Mason as aforesaid were false and fraudulent and plaintiff avers that the defendant was then and there present and heard the said Mason make the representations aforesaid and then and there sanctioned and assented to said representations as true, well knowing that said representations were false and that said note was false, forged and counterfeit and then and there the defendant fraudulently confederated with and aided the said Mason to induce the plaintiff by means of said false and fraudulent representations as aforesaid to receive said note as true and genuine and to pay the said Mason for the same whereby the plaintiff has been injured and defrauded by means of the premises aforesaid to his great damage of to wite five hundred dollars and therefore he sues.

[Signed] Henry, Read and Steele, Attys. for Plff.”

[attached] “24 Oct. 1865, Lawrenceville, Isaac B. Watts, Clerk of the Lawrence County Court, certificate that E.J. Ryan, was a duly commissioned acting JP

DEPOSITION OF BARBARA THORN

The deposition of Barbara Thorn of the County of Lawrence and State of Illinois witness of lawful age produced and sworn on her corporal oath on the 24th day of October in the year of our Lord One Thousand Eight Hundred and Sixty Five at the office of the clerk of the circuit court in and for the county of Lawrence and State of Illinois by Ebenezer J. Ryan a Justice of the peace within and for said County and State aforesaid, upon notice duly given to be read in evidence on the trial of a cause pending in the Coles County Circuit Court wherein Charles Nabb is Plaintiff and on the part and behalf of the said Plaintiff - and wherein John O. McClellan is defendant.

The said Barbara Thorn being first duly sworn.

Interrogatory 1^st: What is your name and age, and where do you reside?

Answer: Barbara Thorn. My age nineteen years. Reside in Lawrenceville, Lawrence County Illinois.

2^ndAre you acquainted with the parties to this suit Charles W. Nabb and John O. McClellan?

Answer: I am.

3^rd: State what you know about the defendant and a man calling himself Mason coming to the house of the Plaintiff on the evening of the Second of June last.

State what they said.What they said they had come for, and what conversation you heard between the Plaintiff and Mason and the defendant fully.

Answer: They came there Mason and Mr. McClellan on the 2nd day on June last, and inquired for Mr. Nabb  who was not at home.  Mr. Mason wanted to go on.  Then(?) Mr. McLellan said that Mr. Nabb was a very accomodating [sic] man.  In about a half hour Mr. Nabb returned in his carriage–when Mr. Mason and Mr. McLellan went out to his carriage–whem Mr. McLellan introduced Mr. Mason to Mr. Nabb.  They stated that they had come for the purpose of getting Mr. Nabb to cash a note which Mr. Mason had.  And I did not hear any further conversation out of the house.  And I went into the house.

4^th:  State what negotiation you heard between the defendant and Mason and the Plaintiff with refference [sic] to the sale or discounting of a promissory note by the defendant and Mason to the Plaintiff.

State who the note was on. Answer this question fully.

Answer:  The note was on Mr. Threlkeld for one hundred and eighty dollars–and discounted twelve dollars and fifty [cents] giving for the note one hundred sixty seven dollars and fifty cents.  The money was paid to Mr. Mason by Mr. Nabb in presence of Mr. McLellan and Mr. Nabb.

I did not hear all that was said between the parties as I went in and out of the room while they were, then I went out of the room for a light and into two or three times.

5^th:  State if you saw the Plaintiff pay the defendant and Mason any money and if so what amount on what account, and when it was.

Answer:  I saw Mr. Nabb pay Mr. Mason one hundred and sixty seven dollars and fifty cents on the 2nd day of June last in consideration of the rate refered [sic] to in the foregoing answer.

6^th:  State what defendant and Mason said about being acquainted with each other, and what defendant said to Mason about his Mason's fine horses.

Answer:  That conversation took place before Mr. Nabb came home.  After they came they were seated on the porch.  Mr. Mason rang the door bell the 2nd time.  I went to the door.  When Mr. Mason inquired if we had a Piano in the house I told him we had and he then asked me if I could play.  I told I did not.  When he said he would come in and play if I would sing.  I told him I did not sing, but had a cousin in the house that could sing.  He then declined coming in and said he would wait until Mr. Nabb came home.  Mason then said to Mr. McLellan when him and his lady came to the city they would endeavor to amuse them, then remarked that he had a span(?) of very fine horses.  When Mr. McLellan remarked to him, you paid one thousand dollars for them, did you not?  Mr. Mason asked me if I rode on horse back.  I told him I did.

7^th:  State how long Defendant and Mason were at the plaintiff's House before the Plaintiff came Home, on the evening of the Second of June last, and what conversation they had with each other before the Plaintiff came Home.

Answer:  I have answered the questions fully in the foregoing answer.

8: [Question missing it seems here.]  That after the introduction by Mr. McLellan, if he did or did not, say My friend had a good note which he wished to cash.  To pay a Bill of freight on Machinery which was at the depot? [In margin, “objected to by Deft.”]

Answer - I don’t remember of his speaking of his friend.  I do not remember.  I heard it spoken of but can't say by whom.

[Signed] Barbara Thorn

On cross examination

Interrogatory 1^st:  When and where did you first make the acquaintance of Defendant?

Answer:  On the 2nd of last June at Mr. Charles W. Nabb’s in the Coles County.

Interrogatory 2^nd:  Did you have the note sold by Mason to Plaintiff in your hands?

Answer:  I did not.

3:  Was said note endorsed to Mr. Nabb, and if so by whom?

Answer:  I think it was endorsed by Mr. Mason.

4:  Did you read the note or the endorsement?

Answer:  I did not.

5^th:  State to whom the note was made payable if you know.

Answer:  I don't know.

6^th:  Was the note witten in ink or pencil on its face?

Answer:  I do not know.

7:  Had you ever seen or spoken to defendant previous to the 2nd of June last?  If so state the time and place.

Answer:  I never had.

8:  Had Plaintiff any acquaintance with defendant previous to 2nd June last? [In margin, “ojected to by Plff.”]

Answer:  I don't know.

[Signed] Barbara Thorn

State of Illinois, Lawrence County

I Ebenezer Ryan a Justice of the Peace in and for said county, do hereby certify that the foregoing deposition was taken by me at the time and place mentioned in the caption thereof.  That the said witness was first duly sworn and that the deposition was carefully read to the witness and signed by her.

Dated this 24th day of October 1865.

[Signed and sealed] E. J. Ryan  J.P”

AFFIDAVIT FOR CONFIRMANCE

Coles County

Charles W. Nabb makes oath and says that he is the plaintiff in a certain cause now pending in the Circuit Court of the State of Illinois within and for the county aforesaid on the common law side thereof, wherein John O. McLellan is defendant, that Matthew P. Threlkeld is a material witness for the plaintiff in said action, that said witness resides in said county but is now temporarily absent from this State that due diligence has been used to obtain the testimony of said witness at this term of said court, a subpoena having been issued for him in time to be served upon him before the first day of the term hereof, that the plaintiff expects to prove by said witness that the defendant and a man calling himself Mason come to said witness where he (witness) was at work in the field and said Mason represented to said witness that he (Mason) was a member of the firm of Walker, Mason and Co. of Chicago and that said firm was engaged in the manufacture of agricultural implements and that said Mason wanted to sell to said witness a reaper which said witness refused to purchase, said Mason then handed to said witness a small pass book and requested said witness to wite his (witness's) name therein which said witness then and there did with a pencil, that this took place on the same day on which a note for one hundred and eighty dollars payable to said firm and purporting to be signed by said witness was dated, that said witness never executed said note and that the same was a forgery, that said Mason represented to said witness that he (Mason) had agricultural implements for sale at Mattoon in the State of Illinois and wanted to sell to said witness some of said agricultural implements. That the defendant drove the carriage in which said Mason and defendant came out to see said witness around the field in which said witness was at work at the time, that said Mason went across said field and met defendant and got into the carriage with the defendant and that they went off together and that affiant knows of no other witness by whom the above facts can be as fully proved and that he expects to be able to have the testimony of said witness at the next term of this court.

Affiant therefore prays a continuance of said cause &c.

[Signed] Charles W. Nabb

Sworn to and Subscribed before me this 1st day of November A.D. 1865, H. Clay Wrotham, Clerk, by Geo. W. Teel, deputy.

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