¶1The deposition of Pierce being taken within this state, and the oath required by the statute “ to testify the truth, the whole truth and nothing but the truth, relating to the cause for which the deposition is taken,” not being shown to have been administered to the deponent, was not admissible in evidence. Gen. Sts. c. 131, § 23. Simpson v. Carleton, 1 Allen, 116. We do not think this objection was waived by the presence of one of the defendants, who made no objection to the deposition at the time on that ground. The witness testified to the circumstances of the seizure of the plaintiff’s seines by the defendants; and, the action being an action of tort, these circumstances were material for the consideration of the jury on the question of damages. The exception to the admission of this deposition must therefore be sustained.
¶2*147The objection to the deposition of Cheney seems to be disposed of by the case of Stiles v. Allen, 5 Allen, 320.
¶3Exceptions sustained.