Opinion
Fall Sessions, 1841.
This was an action of assumpsit for ten years' subscription to a monthly periodical called the Philadelphia Fashions and Taylor's Archetype, at ten dollars per year.
It appeared in evidence that the plaintiff was the proprietor and publisher of the periodical from 1830 to 1839; that the first number was sent to defendant through the post-office, with a request on the cover to return it if he did not wish to become a subscriber. Powell returned it, with the word refused written on the cover; but the work continued to come monthly. The defendant generally, but not-always, returned it.
Wales, for plaintiff.
Gilpin, for defendant.
A clerk of the plaintiff produced his book of original entries, containing credits on account of defendant's subscription, amounting to $30. He proved the first and the last entries which were in his own handwriting, and also that plaintiff's collector had paid over to Ward ten dollars, for the year 1832, on account of defendant's subscription.
Gilpin, for the defendant, contended — 1st. That the book of original entries did not prove the account, unless it was sworn to by the plaintiff, or unless all the entries were proved by the person who made them. 2d. That the book if regularly proved would not be sufficient evidence of a subscription. 3d. That the payment of money by plaintiff's collector for defendant's subscription, was no evidence against the defendant; and if this was sufficient proof of a payment by Powell in 1832, it amounted only to an admission of a subscription for that year, and did not prove an acknowledgment within three years.
Wales, replied — That if the plaintiff had established a subscription to this paper by the defendant, his liability as such subscriber continued until he by some unequivocal act discontinued the subscription. If a paper be sent and received, it is evidence of a subscription. He insisted that he had proved that this paper was regularly sent to Powell for five years and more, and that he more than one year paid for it.
Per Curiam:
The regular mode of proving a Subscription to a paper would be the original subscription list, and the defendant's signature; but such a subscription may be inferred from the acknowledgment of the party, either by the continued habit of receiving and accepting the paper as a subscriber, or by his paying the subscription price.
If a party without subscribing to a paper, declines taking it out of the post-office, he cannot become liable to pay for it: and a subscriber may cease to be such at the end of the year, by refusing to take the papers from the post office, and returning them to the editor as notice of such determination.
The subscription to a paper is not properly proved by an entry in a book account. If the subscription be established by other proof, the annual subscription price might form a proper subject for book entry; but the book must be proved in the usual way by the plaintiff's oath, or the entries must be proved by the person who made them.
As to the proof of payment, no entries of money received from the plaintiff's collector can, as against this defendant, prove a payment by him; such entries can amount to nothing more than a declaration of the agent that Powell had paid him the money.
The plaintiff was nonsuited.