
    McDaniel v. Moody.
    1. Aginhouse, fhe running gear thereof, and a packing screw, are fixtures, inseparable from the realty, and pass with the freehold.
    2. Where real property is levied on, under an attachment granted by a justice of the pence, and is claimed by a third person, the justice caunot award a venirefacias, to try the title.
    3. The Circuit Court has exclusive jurisdiction as to the sale of real property, levied on in virtue of executions, granted by a justice of the peace.
    4. The Supreme Court is not confined to a revision of the errors assigned, When the Court below had no jurisdiction of the cause.
    Thkee attachments were sued out from a justice’s court of Montgomery county, by the plaintiff McDaniel, against one Miller, and levied on a cotton gin, the running gear thereof, and a packing screw, as the property of said ler, ail of which was claimed by the defendant Moody, as belonging to him. The justice thereupon issued a writ of venire facias, summoning a jury, before whom the title was tried, and who found the property suqjectto the plaintiff’s executions. Moody filed his petition to the Judge of the County Court, alleging that his gin house, running gear and packing screw, without mentioning the cotton gin, had been unjustly condemned, &e., and praying for writs of certiorari, to take so much of the cases up to the County Court, as related to the property named in his petition, which were granted according to the prayer of the petition. The justice sent up the cases entire, and certified that there was no such case before him, as the one described in the certiorari. On the return of the writs, the plaintiff moved to quash the proceedings, on the ground that apart of a case could not be removed, but the motion was overruled; whereupon, the plaintiff tendered an issue upon the facts set forth in the claimant’s affidavit, in which he had asserted a claim to the gin, running gear and screw, and not to the house; in which issue the claimant refused to join; and the Court determined, that the claimant could at any stage of the proceedings, without the consent of the plaintiff, abandon any part of the property he had first claimed, and directed the case to be submitted to the jury, so far as the running gear and screw were in question. No issue was joined, and the Court charged the jury, that the running gear and screw were fixtures, and not subject to this attachment, whereupon, they found for the claimant. All which orders and decisions of the County Court, were excepted to by McDaniel, and are here assigned for error.
    Thobitotok, for plaintiff in error.
    It has been repeatedly decided, that there must be an issue for a jury to try, but here there was none; the issue tendered by the plaintiff in this case, was rejected by the defendant, and the trial was had without any. It is inconsistent to send np part, of the proceedings only, and is incurable by verdict. The proceedings here then were erroneous, and should have been quashed. A party cannot dismiss a part of his claim whenever he pleases, and without the consent of the opposite party, because it has the effect of putting all the costs upon the other% And where proceedings are had before a justice of the peace, he is peremptorily re* quired to send up all the papers.
      
       If a party claim one head of cattle, and sustains his title to one only, discontinuing as to the ninety nine, he puts the costs for the whole on the opposite party. This would defeat the design of the statute, which is beneficial, and ought to be sustained. The running gear of a gin is not necessarily a fixture; it is not immovable; on the contrary, they are usually prepared elsewhere, than the place where used, and a wagon will carry the whole. They are never attached to the freehold, and the Court should have left it to thejury, who might have found otherwise. As to what are properly fixtures, see 20 Johnson’s Reports, 29. The claimant could not object to the proceedings between McDaniel and Miller.
    
    Goldthwaite, for defendant in error.
    This case was continued at the term of the County Court, to which tho certiorari was returnable, and the motion to quash could not be made at any subsequent term. If the proceedings were so defective, that a judgment could never be obtained, it should have been continued no longer: but the plaintiff went to thejury. I contend that a party can abandon a part of his claim, so as to save costs. Suppose forty nine out of fifty were properly claimed, and only one not properly claimed, must he be mulct and endamaged, when he is willing to dismiss as to one; it would be a hardship. No injury could result to the plaintiff in the execution, for he could have a venditioni exponas, issued for the property abandoned. The question of fixtures does not properly arise here; the plaintiff is a trespasser; the improvements were on our land; and the course pursued below was correct; there was no other method. Suppose a jury are summoned to try the right of property in two negroes, and they find for the claimant as to one, and against him as to the other. Could not the Court in its discretion, grant a new trial as to the one wrongfully condemned, must the trial be de novo for both; certainty the verdict will stand as to the one properly decided.
    THOEiNGroN, in conclusion.
    The statute is general, which forbids the claimant in a trial of the right of property to dismiss, and if he could not do so in the Circuit Court, he cannot do so in a ease arising before a magistrate. Suppose a statute says you shall not steal a man’s property, would the construction be that he can steal apart? it is the same course of reasoning here in the defendant’s demanding an appeal from a part of a case. The time for ing what he contends for was past; he asserted his claim on oath, and he cannot say it was inadvertent. The plaintiff had no remedy against the property abandoned, and if the claimant was insolvent, the security in the bond alone be looked to; but the bond is still in litigation and not forfeited. And suppose we were to levy on it again, he could claim it again, and so on many times; and for every claim, the plaintiff would have to pay the costs. The want of issue is an incurable defect, and when the defendant refused to join, he should have been non pros’d. The question of fixture, was one purely for the jury; and whether the improvement was put on the land by permission or not, and the terms of that permission. But the Court below undertook to say it was a fixture at all events.
    
      
       Laws of Ala 320'
    
    
      
       Laws of Ala 598.
    
    
      
       3 Bibb R. 288 cited in Am.Dig.208
    
   By JUDGE PERRY.

Without noticing any of the causes assigned for error, we will proceed to dispose of this case, for want of jurisdiction, in the first place in the justice of the peace, and consequently of the County Court, over the subject matter of controversy. In determining this question, it will be only necessary to consider the nature of the property, which was the subject of trial before the justice of the peace, the same being a gin house, .running gear thereof, and a packing screw, and if it be found that the property in dispute are fixtures and belong to the realty, it will at once appear, that the justice had no right to award a venire facias, to try the title. Real property then consists of land, and includes all houses and other buildings standing thereon, erected for the enjoyment of the freehold, of a permanent and immovable nature. The improvements in question, are as permanent and immovable, and as necessary to the enjoyment of the freehold, as any other fixtures whatever, and the freehold interest would be as much deteriorated by their removal, as by that of a house of the same value, and indeed, when we consider the object of erecting such improvements, we are driven to the conclusion, that they are in this country, among the most permanent improvements of freehold estates; that they are fixtures, inseparable from the really, and would pass with the freehold.

Having arrived at this conclusion, it remains to be inquired, how far the title to land can be affected by proceedings had before justices of the peace. The legislature in 1818, passed a law upon this subject, in which it is said “whenever it shall hereafter become necessary for want of personal property to levy an execution, issued by a justice of the peace upon land, it shall be the duty of the officer levying such execution, to return the same to next superior Court of his county, and such Court shall, on motion of the plaintiff, and it appearing by an exhibition of the proceedings before the justice, that the same have been regular order, a sale of such land, or whatever part may be necessary to satisfy such execution.” From the provisions of this statute, it is clear (hat the Circuit Courts are vested with the exclusive jurisdiction, as regards the sale of real property, when levied on by-execution, issued by a justice of the peace, and the legislature has been so cautious as to require that the Circuit Courts should be satisfied that the proceedings of the justice of the peace were regular, or in other words, that they were in accordance with the principles of law. Thus they have taken from the justice all jurisdiction over the realty, in order that the title to that species of property might be better protected and made more secure. If land then can only be levied on by execution, issued by a justice of the peace, in default of personal property, it cannot be made subject to attachment, issued by a justice of the peace, upon a debt within his jurisdiction, because the statute subjecting lands to the payment of debts within a justice’s jurisdiction, does it alone for want, of real property, which the officer is bound to certify to the Circuit Court, when he returns the execution, for the purpose of having the land sold, which he could not do upon attachment. The justice of the peace therefore having no jurisdiction to try the title to real property, it will be conceded at once that the County Court could have no authority to correct that error by a trial de novo.

This case is not within the rule which confines this Court to the errors assigned. That rule presupposes that the Court below had jurisdiction, and that the cause would be affirmed, reversed, or remanded, according as the law should require. But in this, there can be no such judgment-as that of reversing and remanding, for the want of jurisdiction in the Court below to execute it. This Court is therefore of opinion that the judgment be reversed.

Judgment reversed.

Lipscomb, not sitting. 
      
      
         Laws of Ala. 315.
     