
    NOVEMBER TERM, 1844.
    John Doe, ex dem. Egbert Harris, et al. v. John V. Newman.
    Since the act of 1829, Indians are competent witnesses in any case in which white persons would be.
    An Indian must personally reside for fivfe years on the land he claims as his reservation before he can acquire a title to it under the treaty of Dancing ' Rabbit Creek. The residence of an agent on the land is not sufficient.
    The confirmation of an Indian reservation cannot be proved by parol, that is susceptible of higher proof.
    The acts of agents under the treaty of Dancing Rabbit Creek, may be impeached for fraud.
    When a grantee, who holds on condition of residence, abandons the residence, he abandons his right, and thereby avoids it himself, without entry or claim by the grantor.
    Under the treaty of Dancing Rabbit Creek, if an Indian left his home intending to abandon it, he lost his right, whether he afterwards selected another home or not.
    The certificate of the locating agent for the reserves, provided for under the treaty of Dancing Rabbit Creek, that F. was registered for a particular tract of land, &c.,ls admissible evidence to show that F. brought himself within the provisions of the treaty so far as to lay a proper foundation for a title, afterwards to be consummated. And the rejection of such certificate, when offered in evidence in an action of ejectment for the land described in the certificate, is error.
    This was an action of ejectment brought to the April term, 1837, of the Circuit Court of Bolivar county, to recover 1280^^ acres of land. The declaration contained two counts, the first laying the demise in the names of Egbert Harris and Joseph R. Plummer, and the second in the name of Hugh Foster. At the return term John V. Newman was made defendant, and pleaded not guilty. On the trial the plaintiffs produced and read in evidence a copy of the Register of Choctaw names ascertained by the 'agent previous to the 24th day of August, 1831, who wished to become citizens according to the provisions of the treaty of Dancing Rabbit Creek ; on’ which register was the name of Hugh Foster. The plaintiffs then read a certified copy of an application made by Hugh Foster to George W. Martin, locating agent, &c., and the indorsement thereon, which were in the following words and figures, to wit :
    “Chocchuma, Oct. 13, 1834. Sir: Hugh Foster makes application to have fractional section No. 7, containing by estimate 30 acres; lots 1,2,7, 11, 12, and 13, in fractional section No. 31, containing by estimate 264^$? acres ; fractional section No. 33, containing by estimate 256-^ acres ; the north half of section No. 31, containing by estimate 319T$r acres ; and all of sections No. 9, and 10, lying north of the Choctaw boundary, containing by estimate 410 acres — in all 1280t\,2í7 acres, situated in township 22 of range No. 8, west, located for him under the provisions of the treaty of Dancing Rabbit Creek.
    “ Respectfully, your ob’t serv’t, “ Hugh Foster.”
    “Col. George W. Martin.”
    Indorsed — “Hugh Foster is registered for the within described tract of land. The Register is requested to reserve the same from sale, as per instructions from the War Department to me, to reserve lands for said Hugh Foster of-date.
    “ (Duplicate.) “ Geo. W. Martin.”
    The plaintiffs then read to the jury a deed from Hugh Foster and wife, to Harris and Plummer, to the land described in the above application. The plaintiffs then introduced various witnesses, who testified in substance, that in January, 1831, Hugh Foster settled at Indian Point on the- Mississippi River, above the Choctaw line and wifhin the Choctaw Nation ; that before the first of August of that year he claimed a reservation to extend from his settlement up the river so as to include what was then called Clayton’s or Hawken-berry’s improvement — which is the same place on which the defendant now lives ; that in 1835, Foster had seven or eight acres cleared, some above and some below his house. It was admitted that at the commencement of the suit, and at the time of the trial, the defendant was in possession of section 33, which is part of the land in controversy. Here the plaintiffs rested. The defendant introduced a survey and map of the land in the declaration mentioned, and then read a certificate of the Register of the United States land office at Chocchuma, to Pearce Noland, assignee of Jefferson College, dated the 21st day of October, 1833, that he had located and entered various lands — and amongst the rest the said section No. 33,. The defendant also read a deed to said land from Pearce Noland and wife to him, dated 14th March, 1837. He then introduced Mrs. Parish, who being sworn, stated that her grandmother, who was the mother of Hugh Foster, was a full-blooded Indian woman ; whereupon the plaintiffs objected to the witness as incompetent, but the Court overruled the objection and permitted the witness to testify ; to which the. plaintiffs excepted, and filed their bill of exceptions. Mrs. Parish testified that in 1830 Hugh Foster resided on Black Creek in Holmes County, in the Choctaw Nation, had an improvement, and made two crops there, and lived there until the 15th or 20th of December, 1830, when he moved to the Mississippi river ; that she understood from Hugh, he had given to his brother William a cow for the improvement; that William had first owned and lived on the improvement, and his mother, ■witness and two children of William lived with him ; that witness had lived there with her grandmother, the mother of Hugh and William, and when Hugh left he gave it to his mother ; and that if Hugh went'to Indian Point in 1830, it was not until after the treaty of Dancing Rabbit Creek. Being cross examined, she testified that her grandmother lived with William Foster on Black Creek until he,sold to Hugh, after which they lived with him until he gave the place to his mother; and the plaintiffs offered to prove by her that she, Hugh’s mother, had obtained a reservation under the treaty of Dancing Rabbit Creek, including the improvement on which she and Hugh lived on Black Creek-; but the Court refused to permit the proof, to which the plaintiffs filed a second bill of exceptions. The defendant then called Samuel B. Parish, who testified that in September or October, 1835, he went with Hugh Foster to Choc-chuma, and while there he heard Col. Martin, the locating agent, tell Hugh there was no record of his name in his office, and his name not appearing on the books, there was nothing to show that he, Hugh Foster, was entitled to a reservation under the treaty of Dancing Rabbit Creek ; that about a week after Brooks was killed, which witness thought was in the fall of 1837, Hugh Foster left the neighborhood in which he then resided ; before leaving, he expressed a fear of being prosecuted on suspicion of killing Brooks. Being cross examined, witness said he married a niece of Hugh Foster, and that Hugh is still living in Holmes county, Mississippi, within the Choctaw Nation ; but witness never knew where Hugh lived after he left, as above stated, until last year, when he was at Hugh’s house, in Holmes county. Plaintiffs’ counsel then asked witness, “ Whether Moses Foster, a brother of Hugh Foster, was not on the land in controversy at the place of Hugh Foster’s residence, until the 24th of Febuary, 1836, holding possession of said land, and professing to do so as the agent, and by the authority of Hugh Foster?” To which question the defendant’s counsel objected, and the Court sustained the objection, and ruled out the question. To which opinion of the Court, the plaintiffs’ counsel excepted, and filed a third bill of exceptions. The defendant called several other witnesses, who proved, in substance, that Brooks was killed during the general election in November, 1835, and was generally believed to have been killed by Hugh Foster ; that Hugh left the neighborhood soon after the murder, and has never returned since, and that his family left in December, 1835. This being all the evidence offered on either side, the plaintiffs’ counsel asked the Court to instruct the jury as follows, to wit :
    “ 1st. That the act of George vV\ Martin (the locating agent of the Choctaw reservations), locating the land designated in Hugh Foster’s application for a reservation, cannot be impeached or questioned by the defendant.
    u 2d. That even if Hugh Foster left his residence, or the reservation located for him by the locating agent, before the 'expiration of five years after the ratification of the treaty of Dancing Rabbit Creek, that his right to the land was not void, but only voidable, and that the grantor or grantor’s assignee cannot enter on the land without a judicial proceeding to try the fact of forfeiture.
    t£ 3d. That the right of the grantor to enter upon'the land for a breach of the condition of five years’ residence on the land, is such a right as may be waived.
    “ 4th. That if Foster resided on the reservation claimed by him, for upwards of four years a'nd eight months after the ratification of the treaty, that a mere absence from the land, without an intention to fix some other place of residence, does not amount to a change of his residence, and that bis domicil is still on the reservation until the 24th of Febuary, 1836, unless previous to that day he had fixed upon another place of residence.
    “ 5th. That if Foster was entitled to a reservation, under the 14th article of the treaty* of Dancing Rabbit Creek, and had it located by the agent of the United States for locating the reservations, that his title in the land is a fee simple estate, without five years’ residence on the reservation.” All of which the Court refused to give, but said to the jury, when commenting on the second instruction asked, “that Foster had no title to the land, unless he had resided on it five years after the ratification of the treaty.” And when commenting on the third instruction asked, the Court said to the jury, “ that the right of the grantor to re-enter might have been waived at any time before the grantor had assigned the land ; but if the land had been assigned to the .College float, then the government had no right to waive the forfeiture.”
    The defendant’s counsel then asked the Court to charge the jury as follows, to wit : —
    ‘‘1st. That the certificate to Pearce Noland, as assignee of Jefferson College, under the act of Congress, has the force and effect of a patent, and is of itself evidence that all the prerequisites to its issuance have been complied with.
    - “2d. The certificate of George W. Martin, upon the application of Hugh Foster, read in evidence, is not evidence that Hugh Foster’s reservation was in pursuance of, and according to, the terms of the treaty of Dancing Rabbit Creek, nor that said location of G. W. Martin included the improvement of Hugh Foster.
    “ 3d. That if the jury believe from the testimony, that Hugh Foster did not reside on the lands which he claimed as a reservation, for the space of five years after the ratification of the treaty, he has no right to said lands.
    “ 4th. That if they believe said Foster voluntarily removed from his said reservation, before the expiration of five years after the ratification of the treaty, that such removal put an end to his right to a reservation, and that a removal through fear of a prosecution for a criminal offence is a voluntary removal.
    
      “ 5th. That an Indian might remove from his reservation so as to forfeit the same without acquiring a domicil elsewhere.
    “ 6th. That the treaty requires that the reservation of the Choctaw head of a family, under the 14th article of the treaty, should be so located as to make but one tract, and if the’ jury believe from the evidence, that the reservation claimed by Foster is not so located, it is not in conformity to the treaty.
    “ 7th. That unless the-jury believe, from the testimony, that the said reservation was located by said Martin, as aforesaid, prior to the time of the issuance of th,e certificate to Pearce Noland, the legal title under said certificate to Noland is older than the title of said Foster.” All of which the Court gave to the jury as asked for by cTefendant. The plaintiffs then moved for a new trial, and the Court overruled their motion. To which said several opinions of the Court, refusing to give the instructions asked for by the plaintiffs, and giving those asked by the defendant, and overruling the plaintiffs’ motion for a new trial, the plaintiffs’ counsel excepted and filed a fourth bill of exceptions, and now bring the case to this Court by writ of error. The following are the errors assigned, to wit: —
    “ 1st. The Court erred in allowing Mrs. Parish, an Indian woman, to give evidence in the cause.
    “ 2d. The Court erred in refusing to the plaintiffs the right to prove by S. B. Parish, that-Hugh Foster held possession of his reservation at Indian Point (by Moses Foster his brother and agent), up to the 24th of February, 1836, the period of five years after the treaty. ' 1
    “ The Court erred in rejecting the testimony of Mrs. Parish to prove that Hugh Foster’s mother, a full-blooded Indian, and head of a Choctaw family, obtained a reservation under the treaty, including the improvement on Black Creek, on which Hugh and his mother resided-at the date of the treaty.
    “ 4th. The Court erred in refusing to give to the jury, the charges asked for by the plaintiffs’ counsel.
    “ 5th. The Court erred in giving to the jury the charges asked for by the defendant’s counsel.
    u 6th. The Court erred in refusing a new trial.
    
      «/V*. D. Coleman, for plaintiffs in error.
    
      Charles Clark, for defendant in error.
    To the first assignment as error, that the Court allowed Mrs. Parish (whose grandmother was an Indian woman) to give evidence in the cause, it would be a sufficient answer, that her evidence was given against an'Indian, and those claiming under him, if the statute of 1822 (H. & H. 601) was still in force. But that act is repealed, so far as it disqualifies Indians from being witnesses, by the act of 1830, How. & Hutch. 76, which grants all “ the rights, privileges, immunities, and franchises” of white persons to Indians.
    The second assignment as error, is not correctly stated, as will appear from the second bill of exceptions. The Court refused to permitS. B. Parish to answej; the question of plaintiffs’ counsel, u Whether Moses Poster, a brother of Hugh Poster, was not on thé land in controversy, at the place of Hugh Foster’s residence, until the 24th of February, 1836, holding possession of said land, and professing to do so as the agent, and by the authority of Hugh Foster?” It is objected, that this is plainly a leading question, involving several questions, all of which may be answered by a single monosyllable, and clearly indicating to the witness the answer which it was desired that he should make. People v. Mather, 4 Wend. Rep. 229. That this question was asked on cross-examination can make no difference. It was an examination by plaintiffs’ counsel upon a subject in regard to which he had not been examined by defendant’s counsel ; but the question itself, was immaterial. It has been decided by the Court, that five years’ residence on the land by Hugh Foster was necessary to his title. „To contend that he could reside there by an agent, would be as absurd as to contend, that any person might become a qualified elector in this State without a personal residence, by having an agent residing here for him for one year.
    It was intended by the treaty to confer-reservation only on those who intended to abandon the savage and wandering state, acquire the habits of civilized life, and become, citizens of the State. As evidence of this their intention, and to qualify them for the new duties and responsibilities which would devolve on them, this probation of five years’ residence on the land was imposed. If a personal residence or occupation was not required, every Choctaw head of a family might have acquired a reservation, by signifying his intention of becoming a citizen, procuring a substitute to occupy his land, and, in the language of this Court,' in refuting a similar proposition, every head of a family might have removed with the tribe, at the time stipulated in the treaty, without impairing bis right to a reservation. 4 How. Rep. 563. In the case of West v. Donoho, 3, Yerg. Rep. 446, under the Cherokee treaty, similar in its provisions to the'treaty with the Choctaws in 1830, the question arose, whether occupancy in person by the reservee was necessary; and the Court said, that it was the first time they ever heard that necessity doubted.
    The third assignment as error is, that the Court refused to permit the plaintiffs to prove by a witness, Ikrs. Parish, that Hugh Foster’s mother “ obtained ” a reservation to the land on Black Creek, upon which it was proved, and is admitted by the assignment, that Hugh Foster resided at the date of the treaty. If this was necessary to be proven, it should have been done by the highest evidence. This evidence would consist of the registry of her name as a Choctaw head of a family, the location of her reservation on that land by the agent, &c. ; matters which, being of'record, could be proved by the record only. Some of the proof, to show that she was entitled to a reservation, may have rested in parol, but if she had “ obtained” a reservation, the evidence of that was necessarily of record. This was the place at which Hugh Foster was required by the terms of the treaty to have his reservation located, as it was there that he had his improvement and residence at the date of the treaty, and for several months after. The language of the treaty is in the present tense ; which “ reservation shall include the present improvement of the head of the family, or a portion of it.” This Court say, “If the Indian had an improvement, of course that was to be included.” 4 How. Rep. 565. He should then have included this improvement, and if he abandoned it, and gave it away, he gave away and abandoned his right to a reservation, and did not come within the equity of the treaty, which, by the construction given by this Court, allowed those who had no improvement at the date of the treaty to select their reservation on any part of the ceded lands, on which they should settle in a reasonable time.
    The fourth bill of exceptions appears, by its caption, to have been taken after the verdict was rendered, and a new trial refused. Yet it nowhere appears in the record, that exceptions were taken to the opinion of the Court in refusing a new trial. The conclusion of this bill of exceptions is, that the plaintiffs except to the opinion of -the Court in refusing the instructions asked by them, and giving the instructions asked for by defendant’s counsel; and not to the opinion of the Court in refusing a new trial. The last clause, that this bill of exceptions was made part of the record, before the retirement of the jury, is contradicted by the caption, and is not true in point of fact, as the bill itself recites the motion for a new trial, which could not have been made until the verdict was rendered. As no exception then was properly taken to the opinion of the Court in refusing a new trial, and as the exceptions stated in this bill to the opinion of the Court, in regard to the instructions, were not taken until after the retirement of the jury, it is contended that the fourth, fifth, and sixth assignments as error were not well taken.
    But if the Court should examine those charges, it is supposed that no important point will be found that has not been settled by this Court, when the cause was formerly before it (4 How. Rep. 522), and in the case of Niles v. Jlnderson, 5 How. Rep. 365.
    The authorities cited in the Court below by the plaintiffs’ counsel, upon the subject of change of domicil (I have not seen their brief in this Court), applied only to cases arising under the laws for the support of the poor, and for the distribution of the property of deceased persons, in which cases it was necessary to ascertain the last domicil acquired by the party. They cannot apply to the case of an Indian, -under the treaty, who may remove from his residence, and resume the roving habits of the savage, without acquiring a permanent residence or domicil elsewhere.
    It may be here observed, that the only part of the lands in the declaration mentioned, which appears by the record ever to have been in possession of defendant, is section thirty-three. The title to this section is all that may be considered as in question in this case. The nearest part of the section is more than two miles from section six, upon which was Foster’s residence. Even if it were true, as contended by plaintiffs’ counsel, but not proven in the record, that Foster’s improvement extended into section seven, he could not claim section thirty-three as part of his reservation. He should have taken section six or seven, and the lands adjoining, so as to have his reservation in a body. This might have been done in twenty different ways, without including Section thirty-three. But the reservation includes section seven, and several sections, and parts of sections, none of which adjoin section seven, on which part of his improvement is supposed to have been ; and no reason is shown in the record why the adjoining lands to that section were not included. This Court has decided, that this location was not in accordance with the terms of the treaty. 4 How. Rep. 565 ; see also the opinions of the Attorney-General of the U. States, in the Public Land Laws, Instructions, and Opinions, vol. 2, p. 186, 187, Nos. 123, 124, and p. 180, No. 118. Unless, then, the reservation of Foster, as thus located, was, in the language of this Court, effectually recognized before the rights of others accrued, those rights of others must be older and better than such reservation. The title acquired by an assignee of Jefferson College has been ascertained and declared by this Court, in the case of Fulton, etals. v. Doe, ex d. JWcAffre, 5 How.. Rep. 751, and the certificate to him was the force and effect of a patent. All the prerequisites to the issuance of the patent are presumed. The removal of the Indian prior to that time would' be presumed. The'certificate to P. Noland bears date 21st October, 1833. The date on the face of the application of H. Foster for his reservation, is in such confusion of figures in the record, that it cannot be ascertained. The certified copy thereof, as set out in former record, certified by the Commissioner of Indian Affairs, bears date in 1834. There was no proof at what time it was presented to the agent, or at what time it was recognized by him, as his indorsement upon it has no date. It was evidently long after .the certificate to Noland issued, and may have been after the commencement of this suit. The Court below was therefore correct in the last charge given to the jury.
    
      Upon the whole case, it'is contended, that the judgment should be affirmed, as no injustice has been done to plaintiffs, and because if the jury had found a verdict for the plaintiffs, it would have been set aside : —
    1st. Because it was not proven on the trial, that Foster ever resided on any of the lands claimed by him as a reservation.
    2d. He removed from his residence at Indian Point, on section ■'No. 6, before the 24th of February, 1836, voluntarily, and to avoid a prosecution for a felony.
    3d. If he was entitled to a reservation, it should have been located to include his improvement on Black Creek, on which he resided at the date of the treaty, and until December, 1830, as is provpn by the testimony of Mrs. Parish.
    4th. Because his reservation, as now claimed, is in violation of the terms of the treaty, and void against others claiming from the United States.
    5th. Bec'ause if section thirty-three were part of the reservation, it would be the part belonging to the children, being the most distant from his improvement, and the action ca-n only be sustained by them.
   Mr., Chief Justice Sharkey

delivered the opinion of the Court.

This was, an action of ejectment, in which the defendant succeeded, and the plaintiff brings up the case by writ of error. The declaration is for twelve hundred and eighty acres of land, but the amount claimed by defendant seems to be two hundred and fifty-six acres, being section thirty-three, in township twenty-two, of range eight, west. The plaintiff derives title from Hugh Foster, #who claimed under the treaty of Dancing Rabbit Creek, as the head of a Choctaw family, and the defendant claims under a patent to Pearce Noland, as the assignee of Jefferson College. The same case was once before this Court, and many of the questions now raised fall within that decision. The points are numerous, and we cannot'more conveniently dispose of them than by taking them up as they are presented by the assignment of errors.

1st. It is said the Court erred in allowing Mrs. Parish, an Indian woman, to give evidence in the cause. As a general rule, all persons of a proper age are competent witnesses, unless excluded by irreligious opinions, or by express statutory provision on account of some other supposed disability, or unless they have been convicted of some of the crimina falsi. The restrictive act of 1822, which made Indians incompetent as witnesses, was so far repealed by the act of 1829, by which all the privileges, immunities, and franchises of white persons were extended to Indians. How. & Hutch. Dig. 76. This removed the disability and made them competent.

2d. The Court erred in not permitting the plaintiffs to prove by S. B. Parish, that Hugh Foster held possession of his reservation, at Indian Point, by Moses Foster, his brother and agent, up to the 24th February, 1836, the period of five years after the treaty. As a general rule, the possession of the agent is the possession óf the principal, but the language of the treaty does not seem to warrant the application of this rule. It is, “If they (the Indians) reside upon said lands, intending to become citizens of the State, for five years after the ratification of this treaty, in that case a grant in fee simple shall issue.” The spirit of the treaty was to grant to each Indian a home, not a fund to be otherwise used, and the condition subsequent seems to require an actual residence on the land. This very point seems to have been in effect decided on the former trial. 4 Howard, 522. A condition that a party shall live upon land so long, is not performed by leasing it. If a bouse be granted to a man for life, on conditions that he shall dwell in it during the term, it is not sufficient thát he dwell in it once during the term, but he must do so all the term, or else the condition is forfeited. Sheppard’s Touchstone, 136.

3d. That the Court erred in rejecting the testimony of Mrs. Parish, to prove that Hugh Foster’s mother, an Indian woman, and head of a family, obtained a reservation under the treaty, including the improvement on Black Creek, on which Hugh and his mother resided at the date of the treaty. The defendants had introduced this same witness, and her evidence conduced to prove that Foster’s improvement at the date of the treaty, was on Black Creek, and not at Indian Point, and on cross-examination of the witness, the fact on which this assignment is predicated, was offered to be proved, to rebut the presumption of Foster’s right on Black Creek. The witness proved, that at the date of the treaty, Foster’s mother was living with him on Black Creek, and that he soon afterwards left for the Mississippi river, giving his mother the improvement on Black Creek. Two Indian families residing together, would each, no doubt, be entitled to reservation, and this evidence tended, very remotely it is true, to rebut Foster’s right; but it is "objected,’that if Foster’s mother had obtained her reservation on Black Creek, the fact was susceptible of better proof, the register and certificate of the locating agent; and this objection we think, must prevail. Parol proof would be admissible to show her right to a reservation ; but if the reservation was located and conferred to her, these facts were susceptible of higher proof.

4th. The Court erred in refusing to give to the jury the charges asked for by the plaintiffs’ counsel. The charges asked, were five in number, and may be succinctly stated thus : That the act of the locating agent, which located Foster’s reserve, cannot be impeached ; that even if Hugh Foster left his reserve, before the expiration of five years from the ratification of the treaty, his right is not void but voidable, and that judicial proceeding was necessary to try the fact of forfeiture ; that the right of the grantor to enter upon the land for a breach of the condition for five years’ residence, is such a right as may be waived ; that if Foster resided on his residence four years and eight months, a mere absence from the land, without any intention of fixing a residence elsewhere, does not amount to a change of residence, and his domicil was still on the reserve until 24th Feb. 1836, unless he had previously fixed on another residence ; and lastly, that if Foster was entitled to a reservation under the 14th article of the treaty, and had it located by the proper agent, he thereby acquired a title in fee simple, without five years’ residence on the land.

The first charge asked, as a legal proposition, is undoubtedly too broad. We held on the former trial, that the certificate of Martin, as the locating agent, was an official act within the scope of his duty, and as such entitled to credit ; but we cannot say, in general terms, that it cannot be impeached. In the case of Niles v. Anderson, et al., 5 Howard, 366, it was held that the acts of the agents under the Chickasaw treaty might be impeached for fraud ; but the broad proposition contained in the charge here asked, would exempt the acts of the locating agent from impeachment, even for fraud. This question too, to us, seems to be irrelevant, as the record contains ¡lo evidence which has the effect which the counsel designed to counteract.

The Court did right also in refusing to instruct the jury, that even if Foster left his reserve before the expiration of five years, his title was not void, but voidable only, and that judicial proceeding was necessary to settle the forfeiture. By the Common Law, a grantor upon condition subsequent was compelled to enter or make claim for the breach of conditions, because his failure to do so might be construed into a waiver of the conditions. He was, however, excused, if entry could not be made ; but this doctrine can have no application as against the United States, whose possession in all cases is merely constructive, or legal, and as against whom no laches are chargeable. But this was a grant on condition of residence, and if the grantee abandoned the residence he abandoned his right, and thus avoided it himself without entry or claim by the grantor. There would be better ground for the application of this rule, if Foster was in possession, but he occupies the place of plaintiff, having actually lost possession, which is the object of an entry for conditions forfeited. He cannot urge a constructive waiver of the condition in his present attitude. He must rely upon a perfect title, and if he was incumbered by conditions, he must show that he has performed them. In the law of conditions there is another rule, to wit; that no stranger can take advantage of the breach of a condition, — by which it is to be understood that no stranger can enter for a breach of conditions ; yet a grantee under the original grantor may doubtless protect his possession against a forfeited title. Sheppard’s Touchstone, title Condition. So that even this rule cannot be made to avail Foster as against the tenants in possession.

As to the power of a grantor to waive conditions there can be no question, and the Court so in substance instructed the jury, without any testimony in the cause which called for an application of the principle, so that in this there was no error.

The next- charge asked was, that if Foster resided on his reserve four years and eight months, a mere absence from the land, without an intention of fixing a residence elsewhere, did not amount to a change of residence, and his domicil was still on the reserve until the 24th Feb. 1836, unless he had previously fixed on another residence. The general propostion contained in this charge is, that one residence is not lost until another is acquired ; to the truth of which, in its application under a treaty requiring actual residence, we cannot, assent. One home may be abandoned before another is selected. If Foster left with the intention to abandon, he lost his right, whether he afterwards selected another home or not.

The Court was lastly requested to instruct the jury, that if Foster.was entitled to a reservation under the 14th article of the treaty, and had it located by the proper agent, he thereby acquired á title in fee simple, without five years’ residence on the land. This question of residence is the important point in the cause, and Foster’s inability to prove its continuance for the required time, seems to present an impediment fatal to his right. When the case was first before this Court, a residence of five years was held to be a condition subsequent, and its performance indispensable to a perfect title. Altogether, there is nothing in the refusal to charge the jury as requested by plaintiffs’ counsel that will authorize a reversal of the judgment.

5th. The fifth error assigned is, that the Court erred in charging as requested by defendant’s counsel. The several charges given at the request of defendant’s counsel, fall within the remarks already made, or conform to the principles settled on the first trial of this case, except one, and this requires some further notice. The Court charged the jury that the certificate of Geo. W. Martin, upon the application of Hugh Foster, read in evidence, is not evidence that Hugh Foster’s reservation was in pursuance of and according to the terms of the treaty of Dancing Rabbit Creek, nor that said location of G. W. Martin included the improvement of Hugh Foster. This certificate is indorsed on the back of Foster’s application, and is in these words : Hugh Foster is registered for the within described tract of land. The Register is requested to res'erve the same from sale, as per instructions from the War Department to me to reserve lands for said Foster, of-date. Geo. W. Martin.”

It seems that Martin was appointed locating agent for the reserves provided for under the treaty of Dancing Rabbit Creek. Land Laws, part 2, 481 — 483. The object of his appointment could only be accomplished by conferring on him the power to determine, to some extent, the rights of claimants who presented themselves under the provisions of the treaty. The register was required to withhold from sale, lands so ordered to be withheld by the locating agent. The purpose of Martin’s appointment must have been to enable the proper department to ascertain who were entitled to reservations. When, therefore, he certifies that Foster was registered for the land claimed by him, that certificate must have constituted the incipient evidence of title. We have' not been referred to any act of Congress, or order of the proper department, which defines this duty of the locating agentbut assuming that he acted within the scope of his authority, then his certificate was entitled to credit, and must be regarded as evidence that’Foster had brought himself within the provisions of the treaty, so far as to lay a proper foundation for a title, afterwards to be consummated. If he afterwards forfeited his right, still the certificate was admissible to show its commencement. In the first decision of this case, this certificate was held to be admissible as a matter of evidence, but the decision of the Court below virtually excluded it, and in this we think there was error ; for which the judgment must be reversed, and the cause remanded.  