King’s Bench Division.


Sir Richard Burton’s Manuscripts.




(Before Mr. Justice Lawrance, without a Jury by



This was an action by Mr. D. L. Alexander, K.C., asking for an order that the defendant, Mr. Henry Fredrick Walpole Manners Sutton do deliver up to him a MS. of Sir Richard Burton, entitled “Human Sacrifice amongst the Sephardim, or Eastern Jews,” and all copies of the same; also for an injunction restraining the defendant from printing or otherwise dealing with the MS., or doing any acts in derogation of the plaintiff’s right to publish the MS. and obtain copyright therein.


The defendant claimed that the manuscript was his property, he having purchased it at Messrs. Sotheran and Co., of 140, Strand, London.


Mr. Montague Shearman, K.C., and Mr. H. S. Q. Henriques appeared for the plaintiff; Mr. Theobald Mathew for the defendant.


The Plaintiff’s Case


Mr. Montague Shearman, in opening the plaintiff’s case, said there were certain parts of the MS. which it was thought inadvisable to publish, and to prevent their publication an assignment of it had been taken by the plaintiff.


Sir Richard Burton died in 1890, leaving the MS. and all his property to his wife, Isabel Burton. Isabel Burton died in 1896, and appointed Elizabeth M. R. Fitzgerald, Arthur Arundell, and others her executors, and Elizabeth Fitzgerald was appointed her residuary legatee. She also bequeathed the MS. to literary trustees. In January, 1897, the executors delivered the MS. to Messrs. Hutchinson and Co., of Paternoster-row, for publication under the editorship of Mr. W. H. Wilkins. The MS. was published in book form, called “The Jew, the Gipsy, and El Islam,” in which the objectionable parts were omitted. The MS. was then taken in 1904 by Wilkins, and left with Messrs. Sotheran and Co., Strand, for sale. Elizabeth Fitzgerald died in 1902 and Wilkins in 1905.


In 1908 the defendant purchased the MS. from Messrs. Sotheran. In March, 1909, the surviving executors of Isabel Burton, the executors of Elizabeth Fitzgerald, and the executors of Wilkins assigned the MS. to the plaintiff. The plaintiff had a valid title to the MS. as Wilkins had no power to part with it. The firm of Messrs. Cope, Fenwick, and Co., of which the defendant was once a partner, proposed to publish the MS., and it was necessary to apply for an interim injunction restraining them publishing the MS., pending the trial of the action which was granted.


Witnesses were called for the plaintiff to prove that W. H. Wilkins had no authority to part with the MS.


For the defendant Mr. Theobald Mathew considered that he was entitled to judgment, as the defendant was an innocent purchaser.  The plaintiff had not proved affirmatively that Wilkins had no right to sell the MS. Wilkins was the agent of the executors and trustees, and those who claimed through them could not dispute his authority to sell. The defendant was quite willing to sell the MS. to the plaintiff.


Mr. Justice Lawrance held that a good title to the MS. had been proved in the plaintiff, and he made an order for the delivery up of the MS. and granted an injunction restraining the defendant from printing or otherwise dealing with it.


Solicitors — Emanuel and Simmonds; Charles Russell and Co.