I have received your favour of the 28th May, and according to your request have examined the two bills filed by Cresap & Tomlinson vs. McLean, and the Answer to Tomlinson's bill, the other answer I have not yet been able to procure.

You need entertain no apprehensions but that McLean will make every exertion to retain possession of his property; it is one of the most splendid & valuable tracts of land in the State and instead of 578 acres, the quantity mentioned in his deed, contains upwards of 1200. He has employed Alexr Caldwell Esqr. to defend the suits, who is the oldest member of our bar.

That you may be enabled to judge of the ground taken I will endeavour concisely to state the contents of both Bills & answers, and the testimony, so far as I know it.

Tomlinson alledges that in 1770 or 1771 he made a settlement for his father on the round bottom by clearing ground & erecting cabins; that after his settlement Colo. Crawford came to this country to make surveys for Genl W. and employed him as an assistant; that returning from Kenhawa, Cy talked of surveying the round bottom, he Tomlinson objected and informed him that Cresap & himself both had settlements upon it, Crawford replied that he had instructions to make a private survey, & that the survey intended (& which was made) was to be a private one & not in pursuance of any warrant or location. That Tomlinson gave this information to his Father, remained in possession of his settlement & improvement, except when prevented from so doing by the then situation of the Country; that knowing these facts, when he afterwards understood that G.W. had obtained a patent for 578 acres of the round bottom, founded on a survey alledged to have been made by sd Wm Crawford on the 14th July 1773 in virtue of several military warrants of subsequent date to that of the survey, he did not suppose that a title thus derived could operate to deprive him of his settlement right; he refers particularly to the facts, that the survey is of older date than the Warrants & instead of 578 acres contains upwards of 12000 acres; and that his claim is for 400 acres at the upper end of the bottom, that G.W. commenced at the lower end and if run out according to the mathematical calls of the survey would embrace 578 acres without incroaching on his claim. He offers these as his reasons for failing to caveat; and as an additional reason, that he was prevented by the distance from Richmond and the situation of the country and was deceived by the fraudulent representations made at the time of making the survey. He then alledges that he remained in peacable possession until the year ____ when A. McClean finding the said land untenanted took possession, & refers to the ejectment formerly brought & the result in the various courts thro' which it passed, refers to the case as repeated in 5 Munfd 220, but does not make the record a part of the bill, and alledges that the length of time consumed in that suit & the diversity of opinion as to the operation of G.W.'s grant, entertained by the most eminent judges & lawyers, are the reasons why he has not earlier asserted his claim in a Court of equity. He charges that M.L. was a purchaser with notice of the defect in G.W.'s patent.

These are in substance the alligations of the Bill. The answer denies all knowledge of the settlement except from report— Sets forth the Deed from G.W. & the Patent, and states the terms of the purchase— denies any knowledge of Tomlinson's claim previous to his purchase– came to this country in 1798, took possession of & placed tenants upon the land & retained possession ever since except of a small part of which complt. took possession without defts knowledge or assent— Alledges that the land was in a state of nature, when he took possession & not occupied by any person claiming under complt. —Deft has made valuable improvements. The answer suggests that the survey was made many years before the passage of the act appropriating land to actual settlers. (It then refers to a caveat of "the sd Washington & the other proceedings thereon in the Complts bill set forth" and alledges that Deft had no knowledge of them other than what he derives from the copy of the dismissal of sd Caveat filed with the bill, "and as to that begs leave to state that by the sd copy it does not appear whether the sd caveat was dismissed by G.W. on by the court upon a hearing," but be that as it may, that complts title is not thereby strengthened, because the grant was issued before date of the caveat,¹ and that by the Statute which make the proceeding final between the parties, regard was only had to inchoate titles and not such as had been carried into grant)— All this is erroneously placed in this answer by the gentleman who drew it. There is nothing said about the caveat or the proceedings thereon in Tomlinson's bill, tho' there is Cresap's. As to the survey bearing date subsequent to the warrants— it is suggested to have been a mistake & that such mistake on other irregularity in the survey or in reciting the dates of the warrants to not amount to a fraud sufficient to defeat the grant. but at most it is but an irregularity cured by the issuing of the grant. That Deft is an innocent purchaser in full confidence of the goodness of the title & of the fairness of the Survey. That Deft. & G.W. had been possessed of the land since 1784— with the exception of a short time during the pendency of the ejectment, but upon the determination of the suit possession was restored to him— That Complt should have caveated & has shewn no sufficient reason why he has failed to do so.

In this case the deposition of a Capt. Cox has been taken, who I believe is the principal witness relied on by Complt: Cox states that he was with the Surveying party of Crawford in 1773. that Tomlinson joined them below the round bottom, they were all together until the survey was commenced, that he believes the river line only was run, That he never heard any objection made by Tomlinson to making said survey, he was in a situation to have heard such objection had it been made before the survey was commenced. He mentions nothing of improvements until the year 1774, in returning from Dunmore's campayne he passed thro' the round bottom he discovered in the woods back from the river & Without any cleared land, a log cabin with a shingle roof, but without any door, and uninhabited; he does not know who claimed it.

This is the only deposition among the papers furnished me by Mr Caldwell, other testimony has been taken, but I am informed, not more to the advantage of the Complt: than the above. Tomlinson died about 3 weeks since; this suit therefore abates, but will probably be revived, as it is generally understood that it was prosecuted by Mr Duncan the Solicitor & a major Hooe of this County, who made some agreement upon the subject with Tomlinson, by which the suit was prosecuted at their expence. I believe from the character of the family, that if left to themselves the matter would be permitted to rest.

You will perceive from the above statement that Tomlinson's claim is not much to be dreaded. Cresap's is more formidable. It sets forth that his father M. Cresap caused a settlement to be made in the round bottom adjoining lands claimed by Tomlinson, sometime in the year 1770 or 1771. which he devised to his three infant daughters, one of whom married Luther Martin who in 1781 obtained a certificate in virtue of said settlement right & on 24th Feby of that year had it surveyed and on 5th Apl 1784 returned plat & certificate to Registers office— That on the 29th July 1785. Genl G. Washington entered a caveat to prevent the issuing of a grant upon said survey— That in April 1787 said caveat was dismissed and a grant issued to said Luther Martin & wife & the two other sisters; the certificate, Survey & grant are made parts of the bill. That in distributing the estate of M. Cresap decd an arrangement took place by which Complt acquired the right of the patented to said settlement, by conveyances recorded & made a part of the bill. That in pursuance of said conveyances he was regularly & peacably possessed of said land & so continued for a long time— He alledges that both he & all the children were infants of very tender years at the death of their Father, and that he did not know of the claim of G.W. until many years after his fathers death; that he learnt upon application to Luther Martin the facts in relation to sd claim which seemed to forbid the idea that the claim would ever be asserted— He then charges the same as in Tomlinson's bill, only varying the language, and alledging that the improvement made by his father was shewn to G.W.'s surveyor: that G.W. knew & fraudulently concealed the fact that his survey instead of 587 contained 12 or 1300 acres; and infers that the dismissal of the caveat proceeded from a conviction that the grant to G.W. could not impair the equitable or legal claims of the Caveatees. 

That the Complt. had been a long time in peacable possession of the land derived by him as aforesaid until the day of ____ when McLean by virtue of a conveyance from G.W. entered into the possession agt complts will & availing himself of the elder grant retains possession. Charges that McLean at the time of his purchase had notice of the nature of Complts: claim. That the grant to G.W. is void in consequence of the fraud in procuring it, & that the "decision" of the caveat as a legal recognition by a competent tribunal of the validity of Complets: claim. He offers the infancy of the "devisees & heirs" as an excuse for not caveating, also the history of the country. And for not earlier asserting his right to said land before the present period. because he was advised that the said Grant to G.W. was void at Law & that Joseph Tomlinson who claimed a part of the land covered by the same grant had instituted a suit at Law to try its validity, refers to the reported case in 5 Munfd.

McLean is stated to have sold a part of the land to Jonathan Roberts, who is also made a Deft: & both called upon to state the nature & extent of their respective claims. The Bill concludes by praying a conveyance & an account of the rents & profits.

Ms Caldwell informs me that the answer to this Bill is in substance the same as that to Tomlinsons, except that it alledges the fact, that at the time of the conveyances to the Complt: the Grantor's were out of possession— They are dated, one in 1808— the other in 1816— McLean has had possession since 1798.

The Will of the elder Cresap is not made a part of the Bill nor is the record in the suit at Law, in which the special verdict, founded upon the admissions of council, finds many facts which cannot be proved & which in equity perhaps might create some difficulties. Cox's deposition, the contents of which I have already given, has been taken in this case, Joseph Tomlinson's, the Complt in the other Bill, has also been taken, he swears roundly, to the statement as made in his bill of his own settlement, & the objections he made to Crawfords surveying, the conversation alledged to have taken place upon the subject, that George Cox was present & he G.C. or Mark Hardin carried one end of the chain (which Cox denies). That Deponent was along as a spectator; that the river line alone was surveyed. That Michael Cresap in the spring of 1772 sent about 14 hands from Old Town in Md who cleared two pieces of Ground but did not fence them, that the hands went down the river & in the spring of 1773. Cresap sent out one Francis Purcel with his family who settled there (where? at which of the two places before mentioned? were they at the upper or lower end of the bottom?) cleared out six acres of ground, fenced & planted it built a cabin, raised corn & remained until fall when he removed on account of the frontier war. That Deponent resided at the Flats of Grove Creek (about 3 miles above the round bottom) from 1771 to 1774 he then went to Monongalia above Red stone where he was in fact with the inhabitants of the Country, in Feby 1775, deponent married & returned to grave Creek— That notwithstanding Cresaps improvements & claim, deponent insisted upon holding for his father against Cresap until the Comms for adjusting the claims to lands in the Western Country sat at or near Morgantown in 1779, at which time Deponent sent a Messenger to the Widow of Mich. Cresap to request her attendance before Commrs. to have their conflicting claims adjusted. That the Widow sent an agent with whom an amiable arrangement was made & the Comms. in pursuance of sd arrangement allotted to Cresap the lower part of the bottom & to Depot. the upper— and granted them certificates accordingly, which took their dates from 1771. That he never heard or knew of any other survey made by Crawford than the one mentioned; that M. C. Sr. was always considered as the owner of sd land until McLean came on.

Other Testimony has been taken to prove the settlements, Which I cannot procure. The foregoing is said to be that upon which the Plfs. chiefly rely. McLean informed me the other day he had some witnesses to examine; but as I had not then received your letter I did not enquire what he expected to prove by them.

I have been very prolix, notwithstanding my efforts to be as concise as possible. You will perceive the inability of the Complt. to make out a sufficient case for the intervention of a Court of equity, and how totally this testimony fails to support the allegations of the Bill. Tombleson to whose credibility strong objections may be raised, never claimed the lower part of the round bottom, and he states that Cresap & himself had disputed about their possessions. then Cresap must have claimed formerly the upper part of the bottom, & now the lower only under the illegal & unauthorized arrangement between Mrs Cresap's agent & himself‑ The widow according to their own shewing never had any title or authority, allowing for argument that her husband had. Cresap does not pretend at present ever to have had a settlement above, but if his settlement, admiting one had been made, was not above how could it interfere with Tomliston. That you may better comprehend the idea & the whole dispute I annex a connected draft of the whole bottom & the several claims.

From the best examination I have been able to give both the facts & the law—I cannot perceive how the Complts are to recover. I have examined with care the case in Munfd & the cases refered to on both sides. The strongest ground appears to me to be that Cresaps heirs were infants & could not caveat; especially as Our new revision provides that an omission to Caveat creates no bar to other remedies either in law or equity. Our adversaries have employed very able Council, Messrs. Pindle & Duncan. The case will not be tried until next october, before which time I shall have an opportunity of examining all the papers. & will take particular care to have the case properly prepared, in case an appeal should be necessary.

     I shall be happy to avail myself of any suggestions or notes you may think proper to furnish. I shall be particularly obliged to you inform me What was the late decision of the Supreme Court as to the limitation of equitable actions.

     A deposit in any of our District Banks will suit me, when made please forward me the certificate. very truly your Much obliged friend & Obt Servt