M'Farland v. Stewart

The opinion of the Court was delivered by Gibson, C. J. The contents of the printing office were sold on an execution levied in the lifetime of M’Farland the decedent, and bought in by Stewart, who, it is said, has since sold to Johns, along with the types, presses, &c., the advantages of the whole as an -establishment; and the administrator of M’Farland insists, in behalf [112] of the creditors, that Stewart, having sold these advantages as an additional matter, is liable to him for the proceeds as a part of the assets. Undoubtedly the custom or business of one established in an occupation, may enable him to sell the tools or implements of the trade for a price beyond their intrinsic value; and this holds in an especial manner in regard to the subscription list of a newspaper to which a purchaser succeeds as a part of the establishment,. Is it, however, the subject of separate property, or but an accident of something else? The contract of subscription is not assignable; consequently the purchaser does not, in contemplation of law, succeed even , to the interest of the seller, which, by the bye, as the paper may be discontinued at any moment, is not a vested, but a contingent one. The actual advantage to be derived from it resembles that which is derived from the right of renewal, as it is called, incidental to certain leases, which are not at the death of the tenant a separate subject of appraisement or inventory. In the case of an innkeeper, the advantages of the stand would belong to the heir as an incident of the realty ; and in the case of a lawyer or physician, the expectation of practice as a personal incident of professional reputation for skill, would be extinguished by the death of the party. Such advantages then are too ephemeral or indeterminate to be the subject of separate and specific ownership; and whatever they may have been in the present instance, they passed to Stewart as an accessary of the principal sold to him by virtue of the execution. Judgment affirmed.