delivered tbe opinion of tbe court.

Tbe testimony as to malice in tbe assault conflicts, and yet tbe court gave tbe following independent instruction at plaintiff’s instance:

“If tbe jury find for tbe plaintiff, tbey have tbe right to take into consideration, in estimating tbe damages, tbe pecuniary condition of defendant.”

Tbis was error, and may explain tbe amount of tbe verdict.

Reversed and remanded.