The opinion of the court was delivered by

It is insisted in behalf of the plaintiff, that the deposition was inadmissible, because it was not duly opened, and also because it was not filed with the clerk of the court for thirty days before the trial. We do not think that either of the objections should prevail.

There is no statute provision in regard to the opening of depositions taken to be used before justices. They ought doubtless to be opened by the justice, but as the opening of them is in its character a ministerial act, it may be done on any day before the deposition is to be used, as well as in open court on the day of trial.

The deposition, having been properly taken and opened, became legal evidence in the suit, and would, we think, continue such evidence, wherever the suit was carried, until its final determination ; unless, indeed, the right to use the deposition became suspended by the removal of the reason, which justified the taking of it.

It was not necessary to file the deposition with the clerk. The statute requiring depositions to be thus filed for thirty days before the session of the court, in which they are to be used, has, we believe, been uniformly understood to apply only to depositions taken to be used on trials in the supreme and county courts. The statute contemplates, that depositions may be taken to be used before justices of the peace and boards of auditors and referees, as well as before the county and supreme courts, as appears by the form prescribed for certifying them; and when thus taken, they are not required to be filed. At the March Term of the supreme court in Orange county, in 1847, it was held, in a case not reported, that an ex parte deposition, taken to be used before a board of referees acting under a rule from the county court, was properly received in *80evidence by the referees, without having been previously filed with the clerk. This decision was in conformity with the language of the statute, as well as with the long established practice under it.

The deposition in this case having been properly taken to be used before the justice, and properly opened by him, was, we think, legally admissible in evidence before the auditor, without having been filed with the clerk ; and the judgment of the county court is therefore affirmed.