#### BROOKS *v.*BRYAN.

Libel — politicians—giving author — pleading—proposition to settle — forgiving damages. *(¿uere.*If in a libel it is competent to show that the plaintiff is a political gladiator, a sort of a political gentleman, to mitigate libellous publications against him?

It is incompetent on not guilty, to show the author was some other person than the defendant. The giving the author, where slander is uttered on the authority of another, must be pleaded specially, or notice given.

If the plaintiff declare for writing and publishing a libel, it is proved by evidence of writing or publishing.

A proposition to settle, which is not accepted, cannot be given in evidence.

Damages and lawyers’ fees remitted.

Libel. Charge, that he was a mere pretender, Hartford convention federalist, demagogue, traitor. He welcomed the British during the last war into Castine and condemned the war as unjust. He was the tool of the notorious scoundrel Samuel Upton, and in close connection with him, as cashier of the bank of Castine, when they swindled the people out of their money.

Plea, not guilty, with notice that the whole matter of the libel was true.

The libel was read, and it was admitted the defendant was the publisher of the paper, and the plaintiff rested.

*761The defendant then introduced sundry depositions to prove that Brooks -was a federalist, voted for Caleb Strong for governor, and the party called the tory party, and thought the embargo and the late war unjust, and did much to bring the democratic party into disrepute. It appeared also that he was cashier of the Castine bank which had failed.

In rebutting, it was proved, that Brooks was honest, upright, and patriotic; commanded a volunteer company during the war; illuminated his house when the British evacuated Castine; had voted for General Jackson, and, until lately, been his supporter.

*O. Parish*

then asked the court to permit him to be a little irregu. lar in this cause. He proposed to show,

1. That Brooks was a political .gladiator, engaged in the political battle, to establish the defendant’s right to retaliate.

2. That he was a political sort of gentleman; and to read prior publications in mitigation. He cited 1 *John. R.*285; 1 *Bin. R.*85-

*G. Sioan,*contra,

proposed they should read all the publications on each side, which was acceded to.

The parties then read sundry inflammatory publications, and *Parish*read the secession of Brooks and others from the Jackson party,

He' then offered the original manuscript, post marked in Maine, to show that the libel had been written by others, and insisted that in this country you may not complain of the mere publisher as the author, when in fact the article was copied from another, or written by another. The declaration is for writing and publishing. The English judges say, if it appear that the libel was written by others, the action is not supported: 13 *East R.*354.

*G. Swan.*

The position assumed is, that a printer may .publish any anonymous libel with impunity.

*Gilbert,*for the plaintiff,

then offered to prove that he demanded the author, and proposed to sue him if given up, which was refused.

*Parish*

objected.

Wood, J.

The declaration is for writing and publishing, and is sustained by proof of either writing or publishing. The case in *East*is one of variance, and has no application to the question before us. Giving the author is matter of justification, resorted to where slander is promulgated alone on the. authority of another. Evidence of that’ kind cannot be given without special plea or notice — no t under the issue in this case. The evidence is inadmissible.

Wood, J.

That was only a proposition to settle which was not. accepted. It is not evidence.

*762
      *Gilbert*and *Swan*

argued to the jury for the plaintiff, and

*O.*Parish, for the defendant.

*Swan*

stated, that his client wanted nothing of the defendant but to be remunerated for his actual expenses in taking depositions, and to be indemnified for his counsel fees. He proposed for himself and colleague to give up their fees, and that judgment should be entered for $>50, the expense of taking the depositions, and costs, and the residue of the verdict; which being agreed to, was done accordingly.

Wood, J.

charged the jury, who returned a verdict for the plaintiff for *$1160*damages.

The defendant moved for a new trial, and in arrest of judgment, but before argument,