The Sun.
London, England, 1829-06-11 00:00:00

FERSTANDEG V. OUTER AND OTHERS.

This was an action of libel brought by the plaintiff
against the proprietors of a newspaper called the
Morning Journal. The plaintiff, who is a foreigner,
and a translator of languages, received a manuscript
to revise for a Mr. Wilks, a publisher, some time
ago, for which he charged a guinea; and on Mr.
Wilks declining to pay this sum, the plaintiff refused
to deliver up the manuscript, on which he insisted
he had a lien. Mr. Wilks then lodged a complaint
before Sir R. Birnie, at Bow-street, charging the
plaintiff with having stolen the manuscript. Sir R.
Birnie committed the plaintiff for trial, and the jury
returned a verdict of not guilty. Upon his acquittal,
he waited on Sir R. Birnie, and demanded satisfac-
tion. This circumstance gave rise to some strictures
in the newspapers upon the conduct of the worthy
magistrate, in comm►tting a gentleman to take his
trial for a felons on such grounds as those; and in
reply to those strictures the following letter appeared
by way of a defence of Sir R. Birnie

" CASE OF FERSTANDEG.

" TO THE EDITOR OF THE MORNING JOURNAL.

" Sir,—For some time past, as you no doubt are aware,
there has been some little interest excited in the magis-
terial world, and amongst readers of newspapers, in con-
sequence of the committal of a German for the stealing of
a manuscript under peculiar circumstances, his subsequent
acquittal, and demand for an apology from the committing
magistrate. With your customary impartiality and disin-
terestedness, I rejoice to see that you have not (like one of
your cotemporaries) taken up with furious zeal the case of
the foreigner, and vituperated a magistrate of this coun-
try without paying any regard to the circumstances of the
affair, but have fully and equally detailed both the begin-
ning and the end, and then left the public to judge for
themselves. On the other hand, however, one of your
contemporaries has risen up, with the most laughable heat
and wisdom as agreeable, for the purpose of showing that
there was undue power exercised by the police magistrate
in committing the German. But on a little reflection it
will be found that this gentleman did nothing but his duty;
that he had no business to be acquainted with the charac-
ter of the prosecutor, if be really is so unprincipled as he
is represented ; that two witnesses swore to the theft ;
and, as the Justice in question truly remarked, in conde-
scending to explain his conduct to the person, he would b•
liable to a mandamus from the Court of King's Bench if
he had refused to entertain the charge. All these facts
are not, however, discovered by your contemporary, which,
to suit its own, and, perhaps, others' piques, inserts letters
from the German to scandalize the magistrate, after a true
bill for larceny has again been thrown out against the fel-
low. This conduct, both of the German and his paper
supporter, is very Sne ; but I hope, Sir, that its true merit
will be properly appreciated in your independent columns.
" I am, Sir, your obedient servant,

REPREHENSOR."
This was the libel complained of, for which the
plaintiff now sought compensation in damages.
For the defendants it was contended, that the
object and effect of this letter was not to vilify the
character of the plaintiff, but to vindicate the con-
duct of the Magistrate; and that therefore it was
no libel.

The LORD CHIEF JUSTICE, in putting the case to
the Jury, observed, that the principal question
which the Jury would have to decide was, whether,
looking at the whole of the publication, it appeared
to them that its object was to vilify and to degrade
the character of the plaintiff. The first question,
however, for consideration was, whether this was or
was not a libel ? For the purpose of leading them
to a right conclusion upon that question, he should
read to them the. libel, and should remark, as he
went on, on the construction which he was himself
disposed to put upon it. It appeared that the
plaintiff had had some charge made against him of
larceny, for which he was tried and acquitted. That
was admitted by the Learned Sergeants on both
sides, as well as in the libel itself. It then appeared
that some dispute arose about the conduct of the
Magistrate who had committed the plaintiff for trial.
Some thought that he had acted too hastily in the
matter, and others (his friends, probably) were of
opinion that he had done no more than his magis-
terial ditty compelled him to perform. On the '2lst
of January, 1829, the article complained of was pub-
lished in the Morning Journal. How long it was
previous to this date that the transaction which the
libel alluded to had taken place did not appear, nor
was it, indeed, essential to the cause. The alleged
libel was headed in the newspaper " Case of
Ferstandeg," which, no doubt, alluded to the plain-
tiff. His Lordship then read the libel down to that part
in which it mentioned the plaintiff's demand foran apo-
logy from the Magistrate, as far as which he said it
certainly appeared to him that nothing libellous was
stated. As he should read it it was nothing more
than a plain allegation of facts, stated in a fair,
simple, and unvarnished manner. His Lordship then
again reverted to the libel, and read on to that part
in which the writer expressed his satisfaction that
the editor had left the public to judge for themselves
upon the merits of the matter, when he again said,
that, as far as he had proceeded, there appeared to
him nothing to call for observation. The party who
wrote seemed to be stating facts with a fair and
even: mind, and, as he should infer, without any in-
tention of injuring or wounding the feelings of any
one. His Lordship then proceeded to that part of
the libel in which it was stated that the witnesses
swore to the fact of the theft. That, he observed,
was a positive allegation of fact, which, whether
true or false, was of a serious nature to the plainliff.
It was a positive fact that at the trial of Ferstandeg
two persons swore to the truth of the charge
which was made against him. It certainly appeared
to his Lordship that that fact might have been put
in more qualified language, but it would be for the
jury to say.whether there was any covert design
on the part of the writer to give an unfair state-
ment of the affair. His Lordship continued to read
to that part in which it was stated that "as the Justice
in question had truly remarked, in condescending
to explain his conduct to this person, he would have
been liable to a mandamus." Now, it certainly did
not strike his Lordship as being a very courteous
way when writing of another individual simply to
designate him by the word " person." It would be
for the Jury to say, therefore, whether they thought
that the fact of the plaintiff's having been designated
by that term by the writer of this letter afforded
any proof that his object was to hold him up to
public scorn and derision. His Lordship next came
to that part of the publication in which it was said
that a true bill for larceny had again been thrown
out against the fellow. This, he observed certainly
appeared to him to be the paragraph which was most
for the consideration of the Jury. They would have
to say whether that was a bona fide stateineat, or
whether it had been made with a view to injure
either one patty or the other. He must say, that
when a person was speaking of this plaintiff, and said
that a true bill for larceny had been thrown out
against the " fellow," it certainly appeared that he
meant to insinuate that he 'had some grounds
for 'malting the statement. His Lordship then
read the libel to a conclusion, and observed, that
he did not know that much could be collected
from the assumed style of the writer. The question
was, whether this person in writing, or these `l:'
fenclants in publishing, did, in the whole of the para-