Page:Federal Reporter, 1st Series, Volume 4.djvu/611

. STBB&S VV DAMIBIi. 697 �title; or that, having assumed to do thià ia the beginning of his levy, a subsequent neglect to do it ia an abandonment. So far as his acts were excessive, he might cease such excess ■without incurring any imputation of abandonment. He could net legally have forbidden the entry of the sheriff, because, as we have shown, he had no right to the possession of the leasehold lot, and an action of ejectment wasnecessary to recover that possession. The coerced return of the writ •was no abandonment, and ail along the marshal had ail the dominion and control that he lawfully could have acquired by his levy in the first instance. �Does the case stand any differently as to the machinery ? If it be oonceded that the machinery is to be treated as per- sonal property, regardless of its annexation to the land, yet, owingto the fact that it was fixedto the soil, was ponderous, and incapa,ble of manual deliveryiwithout a severance from the soil, the marshal did ail he could do to make an effectuai levy, and to keep it up, as I have already shown by the authoi-jties last cited, See, also, Gladstone r. Padwick, L. E. 6 Exch. 203. It ia undoubtedly true that the officOr may remain on the promises where the goods he takes are situated long enough to remove them, but I thiuk he was not required to tear down this machinery and remove it. Except for that purpose he had no right on the lot at ail after he had de- clared, his levy. He might well let it Stand as he, found it; until the sale, at least. .,r �Eut I cannot assent to the theory that, with such ma- chinery as this, an offieer with an execution can sever it and sell it separate and apart from the leasehold. It might not pass under a levy on the leasehold alone, and as a part of it j but that is not the question. He levied on it by name as machinery, and likewise on the leasehold, and the real question is whether he should have severed and sold ; or, rather, that being his duty, whether his failure to do it was an abandon- ment. I am satisfied his duty was to levy, as he did, on both, and sell both together, in precisely the condition the lessee had placed it; otherwise, this valuable machinery, costing many thousands of dollars, would be unnecessarily ����