Opinion of the Court by

There were no exceptions to the depositions of appellants'filed before the trial was begun; these depositions had been read without objections on a former trial.

The suit was pending in the Perry Circuit Court when the depositions were taken, and it may be presumed from their having been read in that court without objections that the witness resided more than thirty miles from the Perry courthouse.

The amendment of January Id, 1858, to section 611, Civil Code, authorized the taking of the depositions of a witness, to be read in chief on trial of such where the witness resides thirty miles from the place where the court sets in which the action is pending. It may well be questioned whether the change of venue to another county though its courthouse might be within thirty miles of the residence of the witness could render incompetent a deposition competent when taken, but be this as it may, the only evidence heard on the objections to the depositions raises the presumption that the witness resided more than thirty miles from the court then trying the cause; besides after once permitting these deposi*405tions to bo read without objections it was a rigid practice to require proof that the witness resided over thirty miles from the then place of trial when the trial had been entered upon without any exceptions being filed to the depositions.

Because of this error the judgment is reversed.