delivered the opinion of the Court. The o ily question submitted on the report of this case is, whethethe deposition of Samuel Austin, junior, was properly admitted, it not having been directed and sent to the Court or the clerk, but to the demandants’ counsel.
In the case of Goff v. Goff, 1 Pick. 475, a deposition sent to the plaintiff’s attorney, and' by him opened, was admitted on the affidavit of the attorney, that it was opened by mistake. A similar affidavit was filed in the present case, and we think that thereupon the deposition was rightly admitted. It is objected, that this deposition was taken under a commissioi and that the rule of court in such cases, requires, that the deposition should be opened by the clerk. But the rule of court directs, that “ all depositions shall be opened and filed with the clerk.” 16 Mass. R. 373. This rule was as applicable in the case of Goff v. Goff, as it is in the present case. It is mandatory, but it does not prohibit the admission of a deposition, where by mistake the direction has not been observed. It is still left within the discretion of the Court to admit or reject a deposition, according to circumstances, notwithstanding any such mistake in the direction.
Judgment on the verdict.