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T. H. Tindall
adsm
Wm. Russell

Pleas

Filed October 25th 1828
attest
Daniel Ringo D. C

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Thos. H Tindall
adsm
Wm Russell
October Term of the Superior Court 1828.

And the said Defendant by his attorney comes & defends the wrong & injury when &c. and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him because he says that the said writing obligatory in the said Declaration of the said plaintiff mentioned was obtained from the the said Defendant by fraud, covin & misrepresentation, that is to say, by the said plaintiff's falsely & fraudulently representing to the said Defendant that a certain tract of land, bounded as follows, to wit: "joining the Arkansas River in the County of Pulaski in the Territory of Arkansas being a part of the South West fractional quarter of Section thirty six of Township five North of the Base Line, in Range fifteen West of the fifth principal meridian, & divided from the remainder of said fractional quarter Section of land by the North Eastern Boundary line of a tract of about one hundred & five acres lately bargained & sold by said plaintiff to one Robert McEllmurry contained ninety seven acres and the said plaintiff fraudulently contriving & intending to deceive him the said Defendant, falsely represented unto him the said Defendant the number of acres within the above described boundaries, he the said plaintiff well knowing, at the same time, to wit: on the eighteenth day of April in the year one thousand eight hundred & twenty five, at which time the said writing obligatory in the declaration said plaintiff mentioned, was made, that the above described boundaries did not contain the number of acres as stated by the said plaintiff, nor more than fifty acres & the said Defendant by reason of such false & fraudulent allegation & representations made by him the said plaintiff in confidence of such representations, on the day & year last above written made his said writing obligatory and delivered the same to said plaintiff in consideration as above written: all which, he the said Defendant is ready to verify; wherefore he the said Defendant [Image of page 3] prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him &c.

And the said Defendant for a further plea in this behalf by leave of the Court here for this purpose had & obtained according to the form of the statute in such case made & provided, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him because he says that the said Defendant to wit: on the eighteenth day of January 1828. to wit: in the Territory of Arkansas & within the jurisdiction of this Court fully paid the said plaintiff the full amount of the said several sums stated in said plaintiffs declaration & all interest due thereon to the time last aforesaid mentioned; & this he is ready to verify, wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him &c

And for a further plea in this behalf the said Defendant by leave of the Court here for this purpose first had & obtained according to the form of the statute in such case made & provided says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that the said plaintiff before, & at the time of the commencement of this suit to wit; on the first day of January 1828. was, & still is indebted to him the said Defendant in a large sum of money to wit; the sum of fifteen hundred dollars, lawful money of the United States which said sum of money is justly due and owing from him the said plaintiff to the said Defendant by reason that the said plaintiff on the eighteenth day of April in the year 1825. at which time the said writing obligatory mentioned in said plaintiffs declaration was made, represented to the said Defendant that a certain tract of land bounded as follows to wit: "joining the Arkansas river in the County of Pulaski in the Territory of Arkansas being a part of the South West fractional quarter of section thirty six of Township five north of the Base Line in Range fifteen West of the fifth principal meridian, & divided from the remainder of said fractional quarter section of land by the north [Image of page 4] Eastern Boundary line of a tract of about one hundred & five acres lately bargained & sold by said plaintiff to one Robert McEllmurry contained ninety seven acres, & that he the said plaintiff would pay the said Defendant the same price that the said Defendant had agreed to pay the said plaintiff viz, the sum of $15.46/100 Dollars per acre for each & every acre that said tract on Survey should fall short of the said quantity of ninety seven acres: & the said Defendant in fact saith that on survey, the said tract of land contained no more than the quantity of fifty acres & that it falls short of the quantity represented by the said plaintiffs to the said Defendant to contain the whole of forty seven acres, for which lack of forty seven acres represented by said plaintiff to said Defendant to have been contained within the above described boundaries & so bargained & sold as aforesaid the said plaintiff is bound to pay unto said Defendant at the rate of $15.46/100 Dollars per acre for each & every acre that said tract of land within the above described boundaries falls short of the said quantity of ninety seven acres, which said sum of money would amount to $726.62/100 Dollars & which is due & owing from the said plaintiff to the said Defendant as aforesaid, & exceeds the Damages sustained by the said plaintiff by reason of the non-performance by him the said Defendant of the said several supposed promises& undertakings in the said declaration mentioned, & out of which said sum of money so due & owing from him the said plaintiff to the said Defendant, he the said Defendant is ready & willing & hereby offers to set-off & allow to the said plaintiff the full amount of the damages aforesaid according to the form of the statute in such case made & provided: all which the said Defendant is ready to verify – Wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against him &c

C. Ashley atty
for Deft

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