The rule is settled in this State, that if the presiding judge rule erroneously, injury will be presumed, unless the bill of exceptions affirmatively shows that such error did in fact work no injury in the particular ease. — Shep. Dig. 568, § 83. If the circuit court erroneously refused to suppress the depositions of Dr. Weatherly and the two Fosters, there is nothing in this record which repels the idea of injury, or shows that the depositions were not relied on and read to the jury, — McCargo v. Crutcher, 27 Ala. 171; Donnell v. Jones, 17 Ala, 680; Shep. Dig. 568, §§ 87-8.
[2.] The depositions above stated, of Weatherly and the Fosters, should have been suppressed, because the commissioner, did not certify to bis knowledge of, or proof made of, the personal identity of the witnesses. Code, § 2323 ; Thrasher v. Ingram, 32 Ala. 645.
[3.] The measure of damages, as given in charge by the court to the jury, is strictly in accordance with the decisions of this court; and there was no error in giving the affirmative charge, or in refusing to give, without qualification, the charge asked by the defendant. — Stoudeumeier v. Williamson, 29 Ala. 558; Marshall v. Wood, 16 Ala. 806.
[4.] It was certainly not essential to the plaintiff’s right to recover, that the slave should have been, some months after the sale, laboring under the same disease with which she was afflicted at the time of the sale. Unsoundness at the time of the sale, and a diminution of her value as the result of that unsoundness, would amount to a breach of the defendant’s warranty, and entitle the plaintiff to a recovery.
For the error in refusing to suppress the depositions, the judgment of the circuit court is reversed, and the cause remanded.