what effect a proper instruction as to manslaughter would have had on the minds of the jury as to the duration of the punishment for the crime of which the accused was found guilty. It is manifest that under the instructions given, the appellant was either guilty of murder or entitled to an acquittal on the ground of self-defense; and if the question of provocation, caused by the beating of appellant's daughter, had been inserted in the instruction, the verdict as to the term of punishment might, and doubtless would, have been lessened. The jury should have been told, as a matter of law, that the father had the right to protect the person of his daughter from great bodily harm, even against the assault and battery of the husband; and further, that if they believed, from the testimony, the daughter of the accused, prior to the day on which the deceased lost his life, had been assaulted and beaten by her husband so as to endanger her life, or he had inflicted upon her person great bodily injury, and that the accused was appraised of that fact, and if they further believed that the assault and beating of the wife was renewed on the night of the 31st of May, and that he was informed of that fact, the accused had the right to arm himself, and go to the resi dence of the deceased to protect his daughter from the personal violence of the husband; and if, on reaching the place of trouble, he found his daughter and her children expelled from their home into the street by the deceased, and suddenly meeting with the deceased, in sudden heat and passion caused by the beating and ill-treatment of the wife from the appearances then surrounding them, shot the deceased when not in necessary self-defense, and without malice, he is guilty of manslaughter.

In ordinary cases of homicide, where the party kills when there is no reasonable ground for belief on his part of immediate danger of great bodily harm, the offense is murder. Not so when the husband pursues the adulterer and takes his life before there is time for his passion to subside, or the father flying to the relief of the child whose life has been endangered by the repeated cruelty of the husband. In all such cases the parent exercises no greater right than nature has assigned to the beasts of the field, that prompts them to fly to their offspring when in danger of bodily harm.

The error in failing to give such an instruction as the one indicated becomes the more apparent when considering the qualification annexed to the instruction in regard to self-de

fense. That qualification reads, "Unless by his own wrongful act he made the harm or danger to himself necessary or excusable on the part of said Eady." What wrongful act had been committed by the accused is not developed by the testimony, unless it consisted in his going to the home of his daughter in order to protect her. The jury may have so considered it, and treated this case with no greater right on the part of the father to interfere for the protection of the daughter than if he had been an entire stranger to both the wife and husband. This qualification should be eliminated from the instruction, and while the jury, in the exercise of a humane feeling, have by their verdict lessened the rigor of the law as expounded by the court, nevertheless the appellant was entitled to have considered by the jury his rights as parent and the provocation that prompted him in the endeavor to protect his daughter from the cruel assaults of her husband.

The judgment is therefore reversed, and cause remanded, with directions to award the appellant a new trial, and for proceedings consistent with this opinion.

MURDER, WHAT REDUCES TO MANSLAUGHTER. — As to what will reduce murder to manslaughter, see Croom v. State, 85 Ga. 718, ante, p. 179, and

note.

MURDER — INSTRUCTIONS. — It is the duty of the court to instruct the jury upon the law applicable to every degree of the offense indicated by the evidence, no matter how slight such evidence may be: Blocker v. State, 27 Tex. App. 16. Yet, where there is absolutely no evidence tending to establish a certain degree of murder, no instruction need be given with respect to it: State v. Munchrath, 78 Iowa, 269; note to Croom v. State, ante, p. 179. Where a defendant was convicted of manslaughter, upon a trial for murder, he cannot complain of a failure of the court to instruct as to the definition of manslaughter, if he did not ask for such an instruction: Shubert v. State, 66 Miss. 446.

MURDER-THREATS AS EVIDENCE. · See Levy v. State, 28 Tex. App. 203; 19 Am. St. Rep. 826, and note. Prior threats by the deceased against defendant are not admissible for defendant, unless some phase of the other evidence tends to show a case of self-defense: Rutledge v. State, 88 Ala. 85; Hinson v. State, 66 Miss. 532 Threats made by defendant against the deceased are admissible to show malice on the part of the defendant: Babcock v. People, 13 Col. 516; Cheatham v. State, 67 Miss. 335; 19 Am. St. Rep. 310, and note; Pulliam v. State, 88 Ala. 1; Westbrook v. People, 126 Ill. 81; notwithstanding no special connection is shown between the threats and the killing: Rains v. State, 88 Ala. 92; and although such threats were made long before the homicide: Cribbs v. State, 86 Ala. 613; People v. Brown, 76 Cal 573. But there is no legal presumption that a killing is done in pursuance of a threat previously made by the accused against the deceased: Bolser v. People, 129 Ill. 113.

HOMICIDE. One may repel force with force when he himself, or his wife, child, or servant, is forcibly attacked in person or property: Note to Stanley v. Commonwealth, 9 Am. St. Rep. 308; compare Estep v. Commonwealth, 86 Ky. 39; 9 Am. St. Rep. 260.

THOMAS V. IRELAND.

[88 KENTUCKY, 581.]

JUDGMENTS, CONCLUSIVENESS OF, WHEN BASED UPON FALSE RETURN. Where plaintiff acts in good faith in obtaining a judgment upon the return of a sheriff, indorsed upon the summons, that it was executed on the defendant, though in fact it was not, the return is conclusive as between the plaintiff and defendant. Such false return, though procured by one of the defendants, and that defendant the husband of the wronged defendant, will not justify setting aside the judgment as against the innocent plaintiff. The remedy is against the wrong-doers to recover damages. JUDGMENTS-COLLATERAL IMPEACHMENT OF RETURN.-A sheriff's return, though false, cannot be impeached in a collateral proceeding for the purpose of setting aside or of getting rid of a judgment authorized by such

return.

G. W. Williams and Son, and W. S. Roberts, for the appellants. W. W. Ireland, and Miller and Morrison, for the appellees.

BENNETT, J. In 1880, upon the petition of J. B. Ireland and cross-petition of Joel Marshal against the appellants, the Hancock circuit court rendered judgment enforcing mortgage liens upon a tract of land belonging to the appellant Mrs. Thomas, which was executed by her and appellant J. C. Thomas to the appellees, J. B. Ireland and Joel Marshal. The return of the sheriff of Hancock County showed that summons was served upon both of the appellants in each case. The judgment was rendered by default, and the land was sold to satisfy the judgment, and purchased by Joel Marshal.

In 1885 the appellants instituted this action in equity against the appellee J. B. Ireland and the representatives of Joel Marshal, he having died, to set aside said judgment, upon the ground that summons was not served upon the appellant Mrs. Thomas to answer either the petition or cross-petition; that the return of the sheriff, showing that the summons on both petitions had been executed on her, which was false, was brought about by the appellant J. C. Thomas, who induced the sheriff not to serve the summons upon Mrs. Thomas, but to indorse the same executed upon her, in order to conceal from her the fact that her land was in danger of being sold to satisfy the mort

gage debts, which were his and not hers, which conduct, it is alleged, was a fraud upon her. It is not alleged that the appellees J. B. Ireland and Joel Marshal, or either of them, were participants in this wrong-doing, or had any knowledge of it whatever.

It is well settled by this court that where the plaintiff acts in good faith in obtaining a judgment upon the return of the sheriff, indorsed upon the summons, that it was executed on the defendant, though in fact it was not, the return is conclusive as between the plaintiff and defendant. The stability of judgments requires this rule; otherwise judgments settling the rights of parties and giving remedies for the enforcement of these rights could never be regarded as permanent, but would be liable to be set aside, and the rights settled thereby be reopened, when the facts, not only appertaining to the service of the summons, but the merits of the controversy, had been forgotten or rendered unavailing by reason of the death of the parties or witnesses.

Of course, if the plaintiff induces the sheriff to make a return that he had served the summons, when he had not, whereby the plaintiff is enabled to obtain judgment against the defendant, the chancellor would not hesitate to set the judgment aside, upon the ground that it was fraudulently obtained; also, if he knew the sheriff had made a false return, and took judgment against the defendant notwithstanding, he would be regarded as an aider and abettor of the fraud, and the chancellor would set the judgment aside. But as long as the plaintiff is an innocent party, no false return of the sheriff, though procured by one of the defendants, and that defendant the husband of the wronged defendant, will justify setting aside the judgment as against the plaintiff His protection lies in the fact that he is an innocent party.

When the plaintiff is an innocent party, the sheriff and his coadjutor, if he has one, are the wrong-doers, and the wronged party may have an action against them, or either, for damages commensurate to the injury he has sustained growing out of the wrongful act.

Also, as the sheriff is the wrong-doer, and not a party to the judgment, the proceeding to impeach his return is collateral; and it is well settled that his return cannot be impeached in a collateral proceeding for the purpose of setting aside or of getting rid of a judgment authorized by such a return: Taylor v. Lewis, 2 J. J. Marsh. 400; 19 Am. Dec. 135; Smith v.

Hornback, 3 A. K. Marsh. 392; Sergeant v. George, 5 Litt.

199.

The judgment is affirmed.

SHERIFF'S RETURN NOT COLLATERALLY ASSAILABLE. The misconduct of a sheriff in falsely returning process which he never served is not of itself sufficient ground for setting aside a judgment founded upon such false return: Fowler v. Lee, 10 Gill & J. 358; 32 Am. Dec. 172, and note. A sheriff's return is conclusive between the parties interested and their privies: Studebaker v. Johnson, 41 Kan. 326; 13 Am. St. Rep. 287, and note. But a sheriff's return may be impeached when the matters stated therein are not presump. tively within his personal knowledge: Great West Min. Co. v. Woodmas, 12 Col. 46; 13 Am. St. Rep. 204; or where the service was procured by fraudu. lent and unlawful means: Chubbuck v. Cleveland, 37 Minn. 466; 5 Am. St. Rep. 864, and note. In State Ins. Co. v. Waterhouse, 78 Iowa, 674, it is decided that where a notice has been served upon an agent of the defendant, there being no statutory warrant for service upon such agent, no jurisdiction is acquired over defendant, and a judgment rendered upon such service is void.

RILEY V. LEE.

[88 KENTUCKY, 603.]

LIBEL - ADVERTISEMENT CHARGING FALSEHOOD. A written or printed publication which tends to degrade or disgrace the person about whom it is written or printed, or which tends to render him odious, ridiculous, or contemptible in the estimation of his friends or acquaintances or the public, is, per se, actionable as libelous. Accordingly, the publication of a card in a newspaper, charging a person with having uttered a falsehood, is libelous per se.

LIBEL. - MALICE IN LIBEL CONSISTS IN INTENTIONALLY PUBLISHING, without justifiable cause, any written or printed matter which is injurious to the character of another; and everything written and published of another that is injurious to his character must, for the purposes of the action, be taken to be false, until it is shown by plea and proof to be true; and the presumption of malice remains through the entire case until it is met by plea and proof of a contrary motive, or that the publication was justifiable.

LIBEL.

-Gravamen of LIBEL CONSISTS IN ITS PUBLICATION. Accordingly, the fact that a libelous card or advertisement was written by a person other than the publisher will not exonerate the latter from liability. LIBEL-FREEDOM OF PRESS. The constitutional guaranty of "the freedom of the press " is simply intended to secure to the conductors of the press the same rights and immunities, and such only, as are enjoyed by the public at large, in relation to criticising the acts of public officers and private individuals. LIBEL-DEFAMATORY ADVERTISEMENT. — An advertisement proclaiming the defamation of a person's character, and averred to have been published without malice, as a matter of news, is not the subject of a lawful adver tisement unless it is proved to be true, and in the absence of such proof, the publisher must answer in damages.