As against any recovery appellee might show himself to be entitled to, appellants in their answer set up the judgment (for $47.40 and costs) recovered by Pruitt against appellee in the attachment suit, and on the trial offered the judgment as evidence. The court sustained an exception interposed by appellee to the answer in the respect stated, and excluded the judgment as evidence. In so doing the court erred. If the judgment was a valid one (and that it was not is not suggested by anything appearing in the record), it was conclusive of the fact that appellee was indebted to Pruitt as determined by it. That the judgment, if valid, should have been admitted as evidence appears clear, in view of the fact that the measure of appellee's recovery for actual damages, on the facts pleaded by him, was the value of the cotton at the time it was levied upon by virtue of the writ of attachment, and interest thereon, less the amount of said judgment. Mayer v. Duke, 72 Tex. 445, 10 S.W. 566; Blum v. Stein, 68 Tex. 608, 5 S.W. 454; McClelland v. Fallon, 74 Tex. 236,12 S.W. 60.
We think the court also erred when he refused appellants' request in writing to submit to the jury, with reference to appellee's claim of a right to recover exemplary damages, a question as to whether Pruitt was actuated by malice or not when he had the cotton levied upon. While the existence of malice may be inferred from the absence of probable cause, it need not be. Lister v. Campbell, 46 S.W. 876; Hale v. Barnes,155 S.W. 358. Whether in this case the existence of malice should have been so inferred or not should have been determined by the jury instead of by the court.
The judgment is reversed, and the cause is remanded for a new trial.