Opinion of the Court by
This was an action of trespass quwre clausum fregit. The defendants plead not guilty, and Adams justified under an execution from a justice of the peace against the plaintiff, by virtue of which he seized and took the apple trees, &c., in the plaintiff’s declaration mentioned.
To this plea plaintiff below demurred, and the court sustained the demurrer, and on trial of the issue of not guilty, the jury found a verdict for plaintiff below for 130 dollars, and judgment was given thereon. To reverse which, a writ' of error has been brought to this court. The first error assigned is, that the circuit court erred in sustaining the demurrer. The only question presented by the demurrer is, whether on an execution from a justice of the peace, a constable can enter on land and sell fruit trees there standing and growing ? This question is easy of solution. Fruit trees are part and parcel of the freehold, and can in no sense be considered as *284goods and chattels. How far trees growing in a nursery might be considered goods and chattels, is not involved in the question decided by the demurrer, for the plea does not allege them to be nursery trees intended for sale. The demurrer was, therefore, correctly decided.
McRoberts and Hubbard, for plaintiffs in error.
Cowles, for defendant in error.
Another error assigned is, that the court erred in overruling the motion for a new trial. It has been frequently decided by this court, that overruling a motion for a new trial, can not be assigned for error. The judgment below must be affirmed with costs, (a) , (1)
Judgment affirmed.