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Thomas H Tindall
adsm
Wm Russell
Pleas
set aside Service
of Writ
Filed Octr 25th 1828
attest
Daniel Ringo D. C
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Thomas. H Tindall
adsm
William Russell
April October Term of the Superior Court of the Territory of Arkansas
A.D. 1828.
And the said Thomas H Tindall by his attorney comes and defends the wrong
and injury when &c. and says that the said William Russell ought not
to have or maintain his aforesaid action thereof against him because he
says that the said promissory note writing obligatory in the said
Declaration of the said plaintiff mentioned was obtained from the said
Defendant by fraud covin and misrepresentation, that is to say, by the
said plaintiff's falsely and 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, and divided from the remainder of said fractional
quarter section of land by the North Eastern Boundary line of a tract
of about one hundred and five acres lately bargained and sold by said
plaintiff to one Robert McEllmurry contained one hundred and seven
ninety seven acres. and the said plaintiff fraudulently contriving and
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 [Image
of page 3] same time, to wit: on the eighteenth day of April in the
year one thousand eight hundred and twenty five at which time the said
promissory note writing obligatory in the said plaintiff's Declaration
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, and
the said Defendant by reason of such false and fraudulent allegations
and representations made by him the said plaintiff in confidence of such
representations, on the day and year last above written made his said
promissory note in writing writing obligatory and delivered the
said note same to the said plaintiff in consideration as above
written; all which, he the said Defendant is ready to verify; Wherefore
he the said Defendant prays judgment if the said plaintiff ought to have
or maintain his aforesaid action thereof against him &c.
Ashley Defts atty
And the said Defendant for a further plea in this behalf by leave of
the Court here for this purpose had and obtained according to the form
of the statute in such case made and 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 18th day of January
1828. to wit, in the Territory of Arkansas and within the jurisdiction
of this Court fully paid the said plaintiff the full amount of the debt
said several sums stated in said plaintiffs Declaration and all interest
due thereon to the time last aforesaid mentioned; and 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
Ashley Defts atty
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And for a further plea in this behalf the said Defendant by leave of
the Court here for this purpose first had and obtained according to the
form of the statute in such case made and provided, says that the said
plaintiff ought not to have or maintain his aforesaid action thereof against
him, because he says that the plaintiff before, and at the time of the
commencement of this suit to wit, on the first day of January 1828. was
and 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 one thousand eight hundred twenty
five, at which time the said promissory note writing obligatory
mentioned in the 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, and divided from the remainder
of said fractional quarter section of land by the north Eastern Boundary
line of a tract of about one hundred and five acres lately bargained and
sold by said plaintiff to one Robert McEllmurry contained ninety seven
acres, and that he the said plaintiff would pay the said Defendant the
same price that the said Defendant had agreed to pay the said plaintiffs
viz, the sum of $15.46/100 Dollars per acre for each and every acre that
said tract on Survey should fall short of the said quantity of ninety
seven acres; and the said Defendant in fact saith that on survey, the
said tract of land contained no more than the quantity of fifty acres
and 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 [return
to image of page 1] plaintiff to said Defendant to have been contained
within the above described Boundaries and so bargained as aforesaid the
said plaintiff is bound to pay unto said Defendant at the rate of $15.46/100
Dollars per acre for each and 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 cents
Dollars and which is due and owing from the said plaintiff to the
said Defendant as aforesaid, and exceeds the Damages sustained by the
said plaintiff by reason of the non-performance by him the the
said Defendant of the said several supposed promises and undertakings
in the said Declaration mentioned, and out of which said sum of money
so due and owing from the said plaintiff to the said Defendant, he the
said Defendant is ready and willing and hereby offers to set off and allow
the said plaintiff the full amount of the Damages aforesaid according
to the form of the statute in such case made and provided: all which the
said Defendant is ready to verify; Wherefore he the said Defendant prays
judgment if the said plaintiff ought to have or maintain his aforesaid
action thereof against him &c
C. Ashley Defts Atty
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