PHELPS V. June Term, the parties consider themselves as severally seized of differ1860. ent parts of one dwelling house, yet in legal contemplation each of the parties has a distinct dwelling house adjoining ROONEY et al. together, the one being situated over the other. The lower room and the cellar are the dwelling house of the defendant; the chamber, roof, and other parts of the edifice, are the plaintiff's dwelling house." In the last case the plaintiff owned the foundation and first and second stories of a building, and the defendant the third story and roof of the same building. It seems clear, therefore, that it would have been competent for Rooney, had he been so disposed, to have conveyed absolutely, or by way of mortgage, the basement and first story of the building, reserving the upper stories, or those portions which were occupied as a dwelling house, of which he would have remained the owner in fee. If he could have done so by deed, it seems equally clear that the same thing can be accomplished by act and operation of law. Having never occupied the basement and lower story as a dwelling house, they were open to seizure and sale for the payment of his debts, leaving him in the undis turbed possession and use of the portion actually occupied for that purpose. Or, the basement and lower story having been so occupied, a subsequent voluntary abandonment of such use and occupation would at once render them liable to such seizure and sale, and consequently to alienation without the signature of Mrs. Rooney. The restriction of the husband's right to convey without the signature of his wife, is confined to the dwelling house owned and occupied as such, and the land upon which the same is situated. The law regards only that part of the building thus occupied, as the dwelling house, and looks upon it as distinct from the residue, as if it were separated by perpendicular walls Hence, I am of the opinion that the mortgage was good as to the basement and first story of the building, and that it should be so far enforced. A very strong, and to my mind conclusive argument against the position of the majority of the court, that the occupation by the debtor of any portion, however small, of a building as a place of residence, makes the whole building a 1860. PHELPS V. dwelling house, within the language and meaning of the June Term, statute, regardless of its structure, or the use to which the residue may be put, is to be derived from the principles of law applicable to controversies between landlord and tenant, ROONEY et al. as to the right of the tenant to remove buildings or fixtures erected by him during his term. Fixtures erected to carry on trade and manufactures, are, by the common law, removable by the tenant during his term; but fixtures erected for other purposes are not. Cases have occurred where they were erected for the double purpose of trade or manufacture, and as places of residence, and questions arisen as to the tenant's right to remove them under such circumstances. The turning point in such cases is said to be the purpose for which the building was chiefly designed and used. If it was principally to carry on trade or manufactures, and its occupancy as a dwelling but incidental to this main purpose, then the tenant has the right to remove it. If, on the other hand, the primary object was a dwelling house, and trade or manufactures the incidental use to which it was put, he has no such right. Van Ness vs. Pacard, 2 Peters, 137, was such a case, and it was determined upon these principles. It seems to me that they have a strong bearing upon the case under consideration, and that if they are correct for the purpose of determining the nature of the fixture, or kind of building, in the case of a tenant, they must also be correct and applicable to a case like this; and that consistency of reasoning would require the court, if Rooney had been a tenant, and had erected and occupied the building in precisely the same way, to overturn these much favored principles of the common law, and to hold that as between him and his landlord, he had no right of removal, because the building was a dwelling house, and not a fixture erected for the purpose of trade. In my opinion the motion for a rehearing should be granted. AN INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. A ABATEMENT. The objection that one of the grand jurors who ACCESSARY. See CRIMINAL LAW, 13. ACCOUNT. See PAYMENT, 1. 1. Plaintiffs sent to defendant a statement of 61 2. Where an action has been brought for part 3. Where the court instructed the jury, that the ing between the same parties and for furnish- 4. There may be two or more running accounts 1. ACTION. See PLEADINGS, 5. By an act of the legislature, which took ef effect in March, 1857, and which enacted that, 67 |