its very terms, are excepted from its operation as to injuries done them by "dangerous or unsafe cars or engines voluntarily operated by them." This excep

tion declares the common law rule, under the conditions named, which theretofore applied to all employes, and was that knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances was a defense to an action for injury caused thereby, when voluntarily used by him. In Ballard v. Miss. C. Oil Co., 81 Miss. 507, 555, 34 South. 533, 548 (62 L. R. A. 407, 95 Am. St. Rep. 476), the court says: "We are clearly of the opinion that the stepladder furnished the deceased employe, Ballard, was a wholly unsafe and dangerous appliance; but it is equally clear that he had knowledge of its dangerous character. Under the common law his suit would therefore fail." The rule is too well settled to need further citation of authorities; and, applied to the case in hand, the facts shown by Woodruff's own testimony make out a perfect defense for the railroad-that the defective condition of the engine was known to him, and with such knowledge he voluntarily operated it; that this spiral wire guard (the only unsafe appliance shown) was in extensive use by the railroad, and had been for a long time, and he knew as much about its defects as the company itself, and with such knowledge voluntarily used it.

It is contended for appellee that the defense of assumed risk was not presented in the court below, and therefore will not be entertained here. Plainly, the question was squarely presented by the testimony, and the peremptory instruction, and instruction No. 9, to the effect that the jury should find for the defendant, if plaintiff knew of the defect and voluntarily operated the engine, asked on behalf of the defendant and refused by the court. And it is contended, further, that the defense of assumed risk is an affirmative one, and should therefore have

been pleaded specially, which was not done. This is the general rule, but has no application to this case; for the defense relied on was developed by appellee's own testimony in his effort to make out his case. In McMurtry v. Railroad Co., 67 Miss. 601, 7 South. 401, and other cases following it, the court holds that, where contributory negligence is shown by plaintiff's own proof, it will avail the defendant, and it is no objection to the defense that it was not specially pleaded. This principle applies with equal force here.

It follows, from these views, that the court below erred in not giving the peremptory instruction asked on behalf of the railroad.

MAYES, C. J. (dissenting).

Reversed and remanded.

My conviction that this case should be affirmed is so strong that I feel compelled to dissent. The whole court agrees that the case made by appellee was one in which no peremptory instruction was proper, unless section 193 of the Constitution of 1890 ($ 4056 of the Code of 1906; ch. 194, p. 204, Laws 1908), has application. In my opinion section 193 of the Constitution is in no way involved in this case, since it clearly appears that the defective appliance rendered the engine neither dangerous or unsafe. By section 193 of the Constitution, every employe of any railroad corporation-the engineer, conductor, brakeman, flagman—all are given the same rights and remedies for injuries sustained by them from the act or omission of the corporation, or its employes, as is allowed by law to other persons not employes, etc., save in the single exception made as against engineers and conductors, which I shall now notice. Equality of right as against the railroad corporation is established as to all employes, except as to conductors and engineers voluntarily operating dangerous or unsafe cars or engines with knowledge; and this was not the case here. It is

98 Miss.-4

stated that Woodruff operated this engine knowing of the defect which caused his injury, and is therefore precluded from recovery under section 193, which provides that "knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances shall not be a defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them." The particular defect in the engine which caused his injury was a lubricator. The engine which he was operating at the time was complete in all its parts, save this one defect. The testimony shows that it was quite common. for these lubricators to explode, so much so that engineers carry a surplus in the cab in order to replace them when they break. The testimony utterly fails to show that this defective lubricator made the engine dangerous or unsafe for operation.

Before an engineer or conductor can be denied the right under this section to recover for an injury so sustained by him, it must be shown that the defect made the cars or engine unsafe or dangerous. This is what section 193 plainly says. We must suppose that every word in the Constitution has some meaning, and that the words employed to express the will of the convention were used advisedly. The section says that "knowledge by an employe injured of the defective or unsafe character or condition of any machinery," etc., "shall be no defense," etc., "except as to conductors or engineers in charge of dangerous or unsafe cars," etc. Note that in the exception it does not say that an engineer or conductor shall not recover if they operate merely defective cars, but dangerous or unsafe cars; and this engine was neither, in so far as it stood as a menace to human life or limb. It is my judgment that, under section 193 of the Constitution, every employe stands in the same attitude towards the railroad company, as to his rights and

remedies, when injured by the act or omission of the company, as all other persons not employes; the single exception being that neither the conductor nor engineer shall recover for an injury, where he knowingly operates a car or engine that is dangerous or unsafe, but that such persons are not precluded from recovery when they knowingly operate a defective car or engine in no sense. dangerous or unsafe for use.

E. E. FORBES PIANO COMPANY V. L. HENNINGTON.

[53 South. 777.]

JUSTICE OF THE PEACE. A justice of the peace cannot legally purchase property sold under an execution on a judgment rendered by him. Such sale is void as under Code 1906, § 3959, the execution must be returned to him and before him all motions must be made to quash or vacate it. A sale made under a judgment of a justice of the peace is a judicial sale.

Execution sale. Lien under execution.

A lien established when an execution is levied falls with the execution. A sale under execution made after the return day of the execution is void.

APPEAL from circuit court of Marion county.

HON. W. H. COOK, Judge.

This is the second appearance of this case before this court, the same on its first appearance having been reversed and remanded by this court, and is reported in 48 Southern 609.

In the court below Forbes Piano Company was plaintiff and L. Hennington was defendant. From a judgment in favor of defendant, plaintiff appeals.

The facts in the case are as follows:

Mrs. Williams owned a piano in October, 1907, and claims to have sold the same through her husband acting as her agent to appellant, the Forbes Piano Company, at that time, but retained possession. She gave them a bill of sale either on the 23d of October, 1907, or on the 17th of January, 1908, the testimony is conflicting on this point. In December of the year 1907, this piano was sold under an execution from a judgment against Mrs. Williams and bought by L. Hennington, the appellee herein, who was a justice of the peace, and had rendered the judgment under which the property was sold. The property was not sold until after the return day of the execution. The Forbes Piano Company, appellant, brought an action of replevin against Hennington, but failed to recover judgment against him, and from a judgment in favor of Hennington, the Forbes Piano Company appeals.

R. P. Willing, for appellant.

It is perfectly manifest from the record that Hennington acquired no title to the piano. The sale under which he claimed title to the piano was void. Strange to say the defendant instead of introducing the judgment and execution, simply introduced the return on the execution. The piano was levied upon on the 14th of December, 1907, and sold on the 28th of December, 1907. L. O. Magee the sheriff, and his deputy Dort Yorborough testified that the execution was issued on the 14th of December, 1907, and that the piano was sold on the 28th of December, 1907, under that execution.

It further appears from the testimony of the defendant himself that the judgment was rendered by the defendant and the execution was issued by him, and that he became the purchaser at the sale under the execution. The sale under which defendant claims title is therefore void for several reasons. In the first place the testimony shows that the sale under the execution was made on