Page:Federal Reporter, 1st Series, Volume 4.djvu/608

 6i)4 FEDEBi.L BEPOBTEB. �the marshal might be construed in the case of a subsequent execution crediter, Daniel cannot claim it to be an aban- donment, and Freeman occupies no better attitude in filing the bill. �I adhere, however, to the opinion expressed in the case of Dawson v. Daniel, 8 Cent. Law J. 185, that, in a strictly legal contest over this title, the facts show no such abandonment as will defeat the title of Dawson, and that without reference to any equitable consideration above mentioned. The ques- tion of abandonment is to be tested, not so much by what the marshal did, as by what he was jequired to do. If, for exam- ple, the placing a watchman in charge was unnecessary, his withdrawal cannot be an abandonment. The marshal was evidently trying to hold on to his levies, and ail he did must be interpreted in the ligbt of that intention. Yet, if the legal effect of his conduct was an abandonment, his intention to hold on cannot save the levies. �Let us first consider the question without reference to the disputed point whether a leasehold is real estate, and without regard to the "fixtures." Precisely howa sheriff "seizes" or "takes in execution" a term for years, it is difficult to say from anything that has corne under my observation. In Penn- sylvania, although a leasehold was personal property, and was sold as such, no deed or eondemnation being required, as in the sale of lands, it was levied on and sold in the same manner as real estate, the sale and return of the sheriff oper- ating to pass title. Williams v. Dowling, 18 Pa. St. 60; Sowers v. Vie, 14 Pa. St. 99; Dalzell v. Lynch, 4 W. & S. 255.- �I take it the same method is proper in Tennessee. Thomas V. Blakemore, 5 Yerg. 113. I understand that to have been only a paper levy, and it was held that neither a deed nor reg- istration was necessary. It is said in Freeman on Executions that, as to personal property, there must be something more than a mere pen-and-ink levy. Section 260. But this can- not apply to leaseholds, for they are incapable of anything else, and it is everwhere held that where the property is inca- pable of mauual delivery, or is ponderous and immovable, ����