
    Nathaniel Terry vs. Jeptha Robins et al.
    After a new trial has been granted, but before it has taken place in the court below, it is premature to prosecute a writ of error to this court, from the order granting such new trial.
    The statute which prohibits writs of error, except from final judgments, does not conflict with and is not varied by the statute, allowing writs of error from
    ' the granting, or refusal to grant new trials ; the grant of a new trial is not a final judgment, and where the exception taken is to the grant of the new trial, the writ of error cannot be prosecuted until such new trial is had, and a final judgment had therein.
    A bill of exceptions, taken to the grant of a new trial, must set out the substance of the evidence ; otherwise, it will be defective.
    On the subject of fixtures, see Stillman v. Hamer, 7 How. 422, which is cited and confirmed.
    It seems that a still in a still-house, and in use and attached to the still-house, is a personal chattel; and it is not necessary for the relation of landlord and tenant to exist, to warrant its being treated and considered as a personal chattel, so as to authorize its removal.
    In error, from the circuit court of Itawamba county.
    Nathaniel Terry sued Jeptha Robins and Malakiah Cummings in the circuit court, in an action of trespass, for taking away from the close of the plaintiff a certain still. A trial was had, and the jury found for the plaintiff the sum of one hundred and twenty-five dollars damages.
    The defendants moved for a new trial, because the jury found contrary to the law, and they were surprised by the testimony of a.witness, who swore differently on the last from what he had on a former trial. The motion, upon argument, was granted at the costs of the defendants; to which the plaintiff took the following bill of exceptions, viz.:
    
      “ Be it remembered, that this 20th day of October, 1842, it being the fourth day of the court, came on to be heard the motion of the defendants for a new trial in the above cause, and the court granted it, upon the ground that the judge had improperly instructed the jury in regard to the law, and that the jury found their verdict in the case contrary to law.
    “ The question of law that was ruled by the court, in sustaining the motion, was the following: 1 That a still in a still-house, and in use and attached to said still-house, is a personal chattel, and that it is not necessary for the relation of landlord and tenant to exist, to warrant its being treated and considered as a personal chattel, so as to authorize its removal.’ To which opinion of the court the plaintiff, by his attorney, excepts, and tenders this his bill of exceptions, which is signed, sealed, and made part of the record. “Stephen Adams, (Seal.).
    
      “ Presiding Judge."
    
    Before a new trial was had, the plaintiff prosecuted his writ of error from the order granting it.
    
      Davis, for plaintiff in error.
    The only question for the consideration of the court is, whether when the relation of landlord and tenant does not exist, a still set up for the purposes of stilling is a fixture, in the meaning of the term. In favor of its being a part of the realty, I refer the court to the following authorities. Ferard’s Law of Fixtures, 9 ; 20 J. R. 30; 6 Cow. 665; & lb. 323; 2 Peters, 143.
   Mr. Justice Clayton

delivered the opinion of the court.

This is a writ of error, taken to the granting of a new trial, in the circuit court of Itawamba. A verdict had been rendered for the plaintiff, which was set aside by the court, and a new trial granted. The writ of error was prosecuted before the new trial took place, and before any final judgment in the court below.

The bill of exceptions does not set forth the evidence, but states that the- new trial was granted, because the court had erred in charging the jury, “ That a still in a still-house, and in use and attached to the still-house, is a personal chattel, and that it is not necessary for the relation of landlord and tenant to exist, to warrant its being treated and considered as a personal chattel, so as to authorize its removal.”

We cannot but think the writ of error, in this case, was prematurely sued out. The fourth section of the act, in regard to this court, directs that “no writ of error, or supersedeas shall be granted .in any case, until final judgment in the circuit court.” H. & H. 538. We do not think that this rule is varied by the subsequent act, allowing an appeal, or writ of error, from the granting or refusing of a new trial. H. & H. 493. The exception is taken at the time of the act done, but if it be to the granting of a new trial, the case is not brought up until the trial is had and judgment given. Upon the second trial the same result might follow as upon the first, when an appeal, or writ of error, would have become unnecessary, on the part of the party taking the bill of exceptions. The granting of a new trial is not a final judgment. The last statute referred to is not inconsistent with the first, and does not necessarily operate a repeal of it. After final judgment, if it be adverse to the party excepting to the granting of the new trial, he is entitled to the judgment of this court upon the propriety of the order. If, however, the final judgment be in his favor, there is nothing of which he can complain. A decision similar to this has been made in Tennessee. Carroll v. Caldwell, Mart. & Yer. 78.

There'.is another important particular, in which-the bill of exceptions fails to meet the requisitions of the statute. The substance of the evidence is not set out.” Without the testimony, this court cannot determine whether the instruction was a mere abstract charge, or was called for by the proof.

The importance of this rule, and of adherence to it, is fully exemplified by this case. The law, in regard to fixtures, is peculiarly dependent on special circumstances. In a former case we had occasion to state the rule, so far as any general rule could be deduced on the subject. Stillman v. Hamer, 7 How. 422, It is there laid down as the general rule, “ that whatever is fixed to the land is thereby made a part of the realty to which it adheres, becomes parcel of the freehold, and partakes of all its incidents and properties.” This is the general rale, but many qualifications and exceptions have been en-grafted upon it, from a concern for the interests of trade and manufactures, for the convenience and comforts of tenants, and from the varying exigencies of society. The greatest relaxation of the rule is made in the case of landlord and tenant, in favor of the latter, and of tenant for life and remainderman, in favor of the former. It is applied with the greatest strictness between the heir and executor, and vendor and vendee. The modifications of the rule have been made from time to time, from the pressure of peculiar circumstances.” Ib.

It would thus seem that the general rule of law is, as declared by the circuit judge in granting the new trial, if there are any peculiar circumstances to modify that rule, they must be shown to exist by the testimony. We shall not attempt to forestall the party in his proof, but leave him to make out a case', if in his power, which will be exempted from the operation of the general rule.

On the whole, the order of the court below is affirmed, and the cause remanded for a new trial.  