
    
      RIFE vs. HENSON.
    
    
      APPEAL PROM THE COÜRT OP THE SEVENTH JUDICIAL DISTRICT, THE JUDGE OP THE SIXTH PRESIDING.
    Where an order to take depositions has been made at a previous term, and the plaintiff at whose instance it was made, takes out a commission in pursuance of it, and submits his interrogatories to which cross ones are filed, it is sufficient to entitle them to be read in evidence, although the usual affidavit has not been made and annexed.
    If an appellant urge that the subject of the contract between the parties js illicit and the contract void, after having availed himself of its amount, to plead in re-convention and augment the sum in dispute to 300 dollars and upwards, and be thereby entitled to appeal, such defence will be deemed as coming with an ill grace from the party using it, and be disregarded.
    Rife claims of Henson $250 as the price of improvements made on certain Congress lands, according to an agreement with Henson.
    Henson denies owing any thing — and says he purchased out all Rife’s interest in the improvements in the year 1823. He then sets up claims in re-convention to the amount of $216 for rent of the same lands, and $160 which he alledges he paid for in improving them — and which he also says are Congress Lands ; that the improvements on them were . . , , r ,. , , „ made contrary to law. Kite had a verdict and judgment for 45 dollars.
    Western District.
    
      October, 1830.
    The defendant objected on the trial to the reading sundry depositions, because the commission under which they were taken, issued without the affidavit required by the Code of Practice. The reading was admitted on the ground, that at a previous term of the Court, a general order had been entered up to take depositions, and this commission was taken out in pursuance of it. A bill of exception was taken to the reading.
    
      R. C. Scott moved to dismiss the appeal on the ground, that the sum appealed from was under 300 dollars. 2 Mar. N. S. 314.
    
      Winn for defendant;
    maintained the jurisdiction of appeal, because the sum claimed in re-convention exceeds 300 dollars, which alone would give this Court jurisdiction on the appeal.
    2. The plaintiff had no right to recover because he sold the improvements which were made on public lands, and which cannot be the subject of sale because contrary to law. Ing. Dig. 362.
    3. The exceptions to reading the depositions ought to be sustained, because they were taken contrary to the Code of Practice. Art. 430.
   Mathews J.

delivered the opinion of the Court.

In this case the plaintiff claims $250 for improvements made on public lands, which sum he alleges the defendant agreed to pay to him for said improvements.

The answer contains a general denial and a plea in re-convention, in which upwards of 300 dollars are claimed. The cause was submitted to a jury, and on the evidence adduced they found a verdict for the plaintiff for the sum of 45 dollars, whereon judgment was rendered and defendant appealed.

Where an order to take depositions mádeata’previous tiff'^rwhose^in-«tanceitwasmade, takes out a commission in pursu-submits his’inter-cross ones are n-led, it is sufficient to be read m evidence, altho5 the usual affidavit has not been made

urge that the mb-ject of the contract between the ^e^contra'r void| ed%¡mséifSofTO¡ts amount to plead in re-convention, and augment the loo1 >donarsUtand upwards, and be thereby entitled to an appeal, such defence will be deemed as coming with an ill grace from the party using it, and be disregarded.

The record contains a bill of exceptions to the reading of . . y . ° answers to interrogatories of witnesses taken by commission, on the ground that the affidavits1 required by law did not precede said commissions. It appears that at a term of the-Court previous to that at which the trial of this cause took . place, a general order had been entered on the minutes to take depositions, and that cross interrogatories in pursuance thereof were filed, to the witnesses whose testimony was desired by the plaintiff, at whose instance the commissions . issued. The Judge a quo was of opinion that the circumstances dispensed with the necessity of the affidavit, otherwise required, and in this we concur with him. On the hearing * 7 » óf the cause before the appellate Court, the counsel for the . appellant urged a new means of defence, alleging that the , -, , ,, , ... .T1.. . whole contract between the parties is void as being in rela-*-’onan subject: because the laws of the United States prohibit all settlements on public lands. This de- . fence comes most ungraciously from him after his plea m réconvention, by which alone this Court has jurisdiction of case- He claims 365 dollars, basing his claim on the same subject matter, alleged by the plaintiff. Such a de- - , , , . tence cannot be tolerated at this time.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.  