
    Evans vs. Jones’ lessee.
    
    Neither the sale and transfer, nor the offer to sell and transfer his life estate by an Indian reservee under the treaty of 1817, works a forfeiture of his right to his reservation whilst he remains in possession.
    The eniollment of an Indian for Arkansas, who isentitled to a reserve ■under the treaties of 1817, and 1819, is only evidence of an intent to semove and abandon his claim, but is not conclusive evidence of abandonment.
    When an Indian reservee is driven off by force from his reservation, no intention to abandon it, formed whilst so out of possession, can work a forfeiture. The only way in which a forfeiture bf his right can take place, is by a voluntary removal from the land.
    ■■ The declarations of an Indian reservee, contemporaneous with his re-mo'val from his' reservation, are competent evidence for him to show that his removal was forcible and involuntary.
    This is an action of ejectment brought by Jones, an Indian reservee, to recover the possession of the land claimed by him as a reservation. On the trial it was proved that Jones, the lessor of the plaintiff, was seen going in the direction of his reservation, and being asked where he was going, said he was going to take possession. He also’ said, when he was raising his cabin, that he would fight in defence of his claim. Another witness proved, that he met Jones, the lessor of the plaintiff, going" towards the house of witness’ father, that he appeared frightened, and said that he was afraid of his life; that he had been cutting house logs on his reservation, and Samuel Evans had come there and threatened him. Witness s^aw Jones before, when he -was going in that direction, and said he was going to cut house logs; witness afterwards saw some logs cut, but did not know who cút_them. The foregoing declarations of Jones were objected to, but were admitted by the court as being part of. the thing doing when they were uttered; and the opinion of the court excepted to. The defendant proved that Jones had enrolled his name for -the Arkansas, had received the bounty given by the United States, and pay „ , J ° , , , , ' > , tor his improvement, though he had not remoyed. At the trial the defendant’s counsel asked the court to charge the jury, “that if-the plaintiff sold or attempted to sell 'his claim, it was evidence of an abandondonment, and amounted to a forfeiture, for which the State of Tennessee, or those claiming under the State, might enter: And also that the plaintiff’s enrollment for the Arkansas, and his receiving the bounty given by the United States, and pay for his improvements was conclusive evidence of his removal, and abandonment of his claim to a reservation, and worked a complete forfeiture of his estate.” But the court charged the jury on these points in substance as follows: “That the plaintiff could lawfully sell and transfer his life estate, and the selling or offering to sell, would not work a'forfeiture while he remained in possession:— and that his enrollment for the Arkansas was only evidence of an intent to remove and abandon his claim, but not conclusive.”
    To the opinion of the court, in refusirg the charge asked for, and in giving the above direction to the jury, the defendant excepted. The jury returned a verdict for the plaintiff, and a motion for a new trial being made by the defendant, and overruled by the court, the defendant prosecuted an appeal in the nature of a writ of error to this court.
    
      J. Rucks, for plaintiff in error.
    
      James Campbell, for defendant in error.
   Green, J.

delivered the opinion of the court.

We are of opinion the court was right in refusing the charge asked for by the defendant; and also in the charge that was given.

In the case of M’Intosh’s lessee vs. Cleaveland, (7 Yerg. Rep. 38,) this court held, that when a reservee was driven off, by force from his reservation-, no intention afterwards formed to abandon it, could work a forfeiture.

The eighth article of the treaty of 1817, fixes upon one fact alone, by which the title may be forfeited; and that is, the removal of the reservee from the land, and this removal, to work a forfeiture, must be voluntary. If the party remain on the land, or if his removal therefrom has been involuntary, no purpose of mind which he may form, while thus circumstanced, will work a forfeiture.

2. We think that the declarations of Jones, which were objected to by the defendant, and admitted by the court, wire properly admitted in evidence. The ques-, tion for the jury to decide was, whether Jones by abandonment of his reservation, had forfeited his right to it. In order that his removal should have that effect, it must have been voluntary. Now these declarations explain the nature of his removal, and show with what intent he left the land, and so come precisely within the principle laid down in 1 Stark. on Evidence, 48, where it is said, that “when the nature of a particular act is questioned, a contemporary declaration by the party, who does the act, is evidence to explain it.” See also Tompkins vs. Saltmarsh, 14 Serg. and Rawle, 275, and Kirby vs. The State, 7 Yerg. Rep.

These being the only points seriously insisted on, and being of opinion that in neither of these is there error, we affirm the judgment.

Judgment affirmed.  