Scottish Court of Session Decisions

Miss Elizabeth Dalyell died unmarried upon 18th April 1861. She was proprietrix of one-half of the estate of Binns in Linlithgowshire, her brother Sir William Cunningham Dalyell having acquired right to the other half. After her death, however, it was agreed between her trustees and Sir Willian Cunningham Dalyell, with concurrence of all concerned, that the whole estate should be settled in the manner directed by her trust-disposition and settlement dated 21st November 1855, and with codicils dated respectively 12th March 1860 and 3rd May 1860 registered 26th April 1861. That trust-disposition and settlement, by which after satisfying certain other purposes the liferent of the free residue of the estate was given to Sir William Cunningham Dalyell, contained the following clause—“And upon the death of the said Sir William Cunningham Dalyell I direct and appoint my said trustees to dispone, convey, and make over the lands and estate, and others before described, or such parts and portions thereof as may now or then remain unsold, and shall be adjudged and belong to or be vested in them or their foresaids as trustees foresaid, or to which they shall have acquired right as aforesaid, to and in favour of Robert Dalyell [Sir William's son] and his heirs, whom failing to and in favour of Osborn Dalyell [another son of Sir William] and his heirs, but with and under this declaration, burden, and condition, that in the event of any part of the said lands and estate of Binns and others that may remain unsold at the time of my death being thereafter sold or disposed of or excambed by any proprietor or possessor of the same, or adjudged or attempted to be adjudged or carried away in any manner of way for his or her debt, that then and in any of these events there shall be paid out of the price of the lands adjudged, and to be conveyed by my trustees in manner aforesaid, if and when sold, or created a real lien and burden upon the same if they shall remain unsold, to and in favour of such of the children of George Falconer as may then be in existence, or to their heirs, equally to and among them, the sum of £10,000 sterling… . And with this declaration, that in the event of a sale or excambion of any part of the said lands and estate of Binns and others that may remain unsold at the time of my death, or of the same being adjudged or attempted to be adjudged as aforesaid, the said two bequests to the children of the said George Falconer, and their heirs, and [another bequest] shall then be real preferable liens and burdens upon such parts and portions of the said lands and estate as are now directed to be adjudged and conveyed, and are to be adjudged and conveyed by my said trustees in manner foresaid, or upon the price thereof, if sold: And all these burdens, conditions, and declarations shall be inserted in any conveyance whatever of the same to be made and granted by my said trustees or their foresaids, as above directed, and shall be appointed by them to be inserted in all future transmissions and investitures of the said lands and estate for ever, and shall be inserted in the instrument of sasine to follow upon said conveyance by my said trustees or their foresaids, which instrument of sasine shall forthwith be expede, completed, and recorded by and at the sight of my said trustees or their

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foresaids, it being my most earnest wish and desire that the said lands and estate of Binns shall be preserved and maintained whole and entire in lineal descent in my family in all time to come, and my full intention to do all in my power to effect that object.”

The effect of the codicils was to alter the destination by striking out the name of Osborn Dalyell and by calling after Sir Robert Dalyell, and the heirs of his body, his sister Mrs Maria Christina Dalyell or Du Plat and the heirs of her body, whom failing Mrs Elizabeth Grace Dalyell or Cornwall and the heirs of her body, whom failing George Falconar of Carlowrie, and the heirs of his body. In all other respects the codicils ratified the trust-settlement.

Sir William Cunningham Dalyell died upon 16th February 1865, and by disposition dated 10th and 12th and recorded 16th April 1872 (Mrs Du Plat having died without issue, and George Falconar being also dead), Mr John Wilkie and Sir Robert Dalyell, Miss Dalyell's surviving trustees, disponed the estate of Binns to and in favour of Sir Robert Dalyell and the heirs of his body, whom failing to and in favour of Mrs Elizabeth Grace Dalyell or Cornwall and the heirs of her body, whom failing to and in favour of the heirs of the body of George Falconar: “But declaring always that these presents are granted with and under the real burdens, conditions, provisions, and declarations which are specified and contained in the foresaid trust-disposition and settlement of the said deceased Elizabeth Dalyell, and hereinbefore fully specified, in so far as these or any of them may now or for the time be consistent and applicable, and capable of being made legally effectual against the said lands and others or the heir in possession thereof for the time; and which burdens, conditions, provisions, and declarations are thus expressed in the said trust-disposition and settlement of the said Elizabeth Dalyell, viz.” … [as above].

By disposition dated 17th April and recorded 18th April 1872, Sir Robert Dalyell disponed the estate of Binns to and in favour of himself and the heirs of his body, whom failing his sister Mrs Elizabeth Grace Dalyell or Cornwall and the heirs of her body, whom failing the heirs of the body of George Falconar, but he omitted the whole burdens and conditions of Miss Dalyell's trust-disposition and settlement, and by another disposition dated 17th April 1872 and recorded 23rd June 1886, Sir Robert Dalyell disponed the property of Binns to himself and the heirs of his body, whom failing to Mrs Elizabeth Grace Dalyell or Cornwall in liferernt, and the heirs of her body in fee, whom failing to John Wilkie and the heirs of his body. John Wilkie was Sir Robert's cousin and a nephew of Miss Elizabeth Dalyell, his mother being her sister. George Falconar was more distantly related to the Dalyell family, his mother being Miss Dalyell's cousin.

Sir Robert Dalyell died unmarried in January 1886, and his sister Mrs Elizabeth Grace Dalyell or Cornwall succeeded to the liferent of the estate of Binns and assumed the name of Cornwall Dalyell. She was born in 1829 and had no issue. John Wilkie died in 1884. In June 1891 George Mercer Falconar Stewart, Esq., of Binny, Linlithgowshire, brought an action against Mrs Elizabeth Grace Dalyell or Cornwall Dalyell and her husband Gustavus Charles Cornwall Dalyell, as administrator-in-law for his said wife, and for all right and interest he might have in the premises, James Wilkie, of Foulden, in the county of Berwick, John Dalyell Wilkie, his younger brother, Miss Henrietta Eleanor Marie Wilkie, Miss Harriet Charlotte Wilkie, and Miss Eleanor Bruce Wilkie (children of the late John Wilkie), Edinburgh; Admiral Sir Alexander Milne, Bart., G.C.B., K.C.B., and Sir Alexander Kinlock of Gilmerton, Bart., as curators of the said John Dalyell Wilkie and Eleanor Bruce Wilkie; Miss Frances Henrietta Falconar, presently residing in Edinburgh, and Mrs Helen Jane Falconar or Collyer, wife of John Mounsey Collyer, barrister-at-law, London (his sisters), and the said John Mounsey Collyer for all right and interest he might have in the premises, “to have it found and declared by decree of the Lords of our Council and Session that the disposition, dated the 10th and 12th, and with warrant of registration thereon, recorded in the Division of the General Register of Sasines applicable to the county of Linlithgow the 16th, all days of April 1872, granted by John Wilkie, Esquire of Foulden, and Sir Robert Alexander Osborne Dalyell of Binns, Bart., both now deceased, the surviving trustees of the deceased Miss Elizabeth Dalyell, daughter of the late Sir Robert Dalyell, of Binns, Bart.—acting under her trust-disposition and deed of settlement and codicils thereto therein mentioned—in favour of the said Sir Robert Alexander Osborne Dalyell and the heirs of his body, whom failing as therein mentioned, was granted, and that All and Whole the lands and estate of Binns and others in the county of Linlithgow, being the lands and others particularly described in the said disposition, dated and recorded as aforesaid, were thereby disponed, with and under the real burden, condition, and provision, inter alia, that in the event of any part of the said lands and estate of Binns and others being thereafter sold or disposed of or excambed by any proprietor or possessor of the same, or adjudged, or attempted to be adjudged or carried away in any manner of way for his or her debt, that then and in any of these events there should be paid out of the price of the said lands, if and when sold, or created a real lien and burden upon the same if they should remain unsold, to and in favour of such of the children of George Falconar, Esquire of Carlowrie, now deceased, as might then be in existence, or to their heirs, equally to and among them, the sum of £10,000 sterling: And that the said late Sir Robert Alexander Osborne Dalyell held, and the defender Mrs Elizabeth Grace

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Dalyell or Cornwall Dalyell now holds, the said lands and estate of Binns and others subject to the said real burden, condition, and provision: And the same being so found and declared, it ought and should be found and declared, by decree foresaid, that by disposition and settlement, dated the 17th day of April 1872, and with warrant of registration thereon, recorded in the said Division of the General Register of Sasines applicable to the county of Linlithgow the 23rd day of June 1886, the said Sir Robert Alexander Osborne Dalyell disposed of the said lands and estate of Binns and others within the meaning and intent of the said real burden, condition, and provision: And further it ought and should be found and declared, by decree foresaid, that the said sum of £10,000 sterling formed from and after the said 23rd day of June 1886, and is now, a real lien and burden upon All and Whole the said lands and estate of Binns and others in the county of Linlithgow, being the lands and others particularly described in the foresaid disposition recorded in the said Division of the General Register of Sasines on the 16th day of April 1872, and that in favour of the pursuer and of the defenders Miss Frances Henrietta Falconar and Mrs Helen Jane Falconar or Collyer equally, and their heirs, and aye and until the said sum shall be fully paid and satisfied, subject always to the declaration that the same shall not be exigible, and shall not bear interest, during the lifetime of the defender Mrs Elizabeth Grace Dalyell or Cornwall Dalyell: Or otherwise, it ought and should be found and declared, by decree foresaid, that the defenders the said James Wilkie, John Dalyell Wilkie, Henrietta Eleanor Marie Wilkie, Harriet Charlotte Wilkie, and Eleanor Bruce Wilkie, or their heirs, are not, nor any of them, entitled to take possession of the said lands and estate of Binns and others, or any part thereof, or in any way to dispose thereof, or to burden the same, or take benefit under the said last-mentioned disposition and settlement, without making payment to the children of the said deceased George Falconar or to their heirs of the sum of £10,000 sterling.”

The pursuer, the only son of George Falconar of Carlowrie, averred that “the disposition recorded on 23rd June 1886 dispones the said lands and estate of Binns to the said John Wilkie, to the prejudice of the heirs of the body of the said George Falconar. This disposition is a disposal of the said estate within the meaning of Miss Dalyell's settlement and the disposition by her trustees before mentioned, whereby the said sum of £10,000 has become exigible, and will be payable on the death, without issue, of the defender Mrs Cornwall Dalyell.” In consequence of the omission of the real burden from the disposition by Sir Robert Dalyell, recorded 18th April 1872, he averred that it was necessary for his protection that the said buren should be of new declared a real burden upon the said lands as concluded for.

He pleaded—“(1) The pursuer, as one of the heirs of the body of George Falconar, is, in virtue of the disposition of 1872 granted by Miss Dalyell's trustees, entitled to decree of declarator in terms of the first conclusion of the summons. (2) Prescription not having run on the disposition granted by Sir Robert Dalyell, recorded in 1872, the estate of Binns is still held subject to the burden of £10,000 contained in the said disposition by Miss Dalyell's trustees, and decree of declarator should be pronounced accordingly. (3) Sir Robert Dalyell having by the said disposition granted by him, recorded in 1886, disposed of the estate of Binns within the meaning of the said disposition by Miss Dalyell's trustees, the pursuer is entitled to decree in terms of the remaining declaratory conclusions of the summons, or one or more of them. (4) The defenders, the children of the deceased John Wilkie, are not entitled to take benefit under the said disposition by the said Sir Robert Dalyell without making payment of the sum of £10,000.”

The defenders—the Wilkie family—pleaded—“(1) The pursuer has no right, title, or interest to sue the present action. (3) The pursuer is not entitled to decree in terms of any of the conclusions of the summons, in respect—1st, that Miss Dalyell was not entitled to burden her estate with the provisions in favour of the children of George Falconar founded on by the pursuer; 2nd, esto that Miss Dalyell was entitled to burden her estate with the said provisions, they are not so expressed as effectually to burden the estate; 3rd, that Sir Robert Dalyell was entitled to re-settle the estate free from the burden of the said provisions, and that he effectually did so by the dispositions, dated 17th April 1872, and recorded respectively 18th April 1872 and 23rd June 1886; and 4th, that in any event the disposition, recorded on 23rd June 1886, did not constitute a disposal of the estate of Binns within the meaning of Miss Dalyell's settlement and the disposition by her trustees dated 10th and 12th April 1872.”

Mrs Cornwall Dalyell and the pursuer's sisters although called as defenders did not appear.

Upon 5th December 1891 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor” Finds that on the just construction of the trust-disposition and settlement and codicils of the deceased Miss Elizabeth Dalyell, and of the disposition by the trustees of the said deceased Miss Elizabeth Dalyell, both mentioned on record, the defenders James Wilkie, John Dalyell Wilkie, Henrietta Eleanor Marie Wilkie, Harriet Charlotte Wilkie, and Eleanor Bruce Wilkie, and each of them, and their respective heirs, are bound, on succeeding to the estate of Binns under the disposition and settlement of the late Sir Robert Alexander Osborne Dalyell, mentioned in the summons, to make payment to the pursuer, and the other children of the deceased George Falconar of Carlowrie, or to their heirs, of the sum of £10,000 sterling, or otherwise, in the defender's option, to create over the said estate a valid real

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burden for that amount in favour of the said children of the said deceased George Falconar and their heirs: Therefore finds, declares, and decerns in terms of the alternative conclusion of the summons, subject to the qualification that the defenders' obligation will be satisfied by their creating a valid real burden upon the estate in favour of the pursuer and the other children of the said deceased George Falconar for the said sum of £10,000: Quoad ultra assoilzies the defenders from the conclusions of the summons, and decerns, &c.

“ Opinion.—The pursuer in this case was, along with his sisters, entitled under the former destination of the estate of Binns to succeed to that estate on the death without issue of the present liferentrix Mrs Cornwall Dalyell. By a mortis causa disposition executed by the late proprietor Sir Robert Dalyell, the estate was disponed, on Mrs Cornwall Dalyell's death without issue, to the defenders, the children of the late Mr Wilkie of Foulden.

The pursuer seeks in the present action to have it declared (1) that under the titles to the estate a real burden exists in favour of himself and his sisters, whereby they became entitled on the disposition to the Wilkie family taking effect to payment of a sum of £10,000; or alternatively, (2) that the Wilkie family, as gratuitous disponees of Sir Robert Dalyell, are bound personally, on the disposition in their favour taking effect, to pay to the pursuer and his sisters the said sum of £10,000, or to create a real burden in their favour over the estate for that amount. These are not in words the conclusions of the summons, but such appears to be the substance of the pursuer's demand. If the conclusions of the summons should be thought to go further and to be expressed too broadly, that is a matter which can be rectified.

The question arises in this way—The late Miss Elizabeth Dalyell was proprietrix of one-half of the estate of Binns, and her brother Sir William Dalyell possessed or had acquired right to the other half. After Miss Elizabeth's death it was agreed between her trustees and Sir William Dalyell, with concurrence of all concerned, that the whole estate should be settled in the manner directed by Miss Elizabeth's trust-disposition and codicils dated in 1855 and 1860. Accordingly in 1872, after Sir William Dalyell's death, a disposition was obtained from the trustees of Sir James Dalyell (a previous Baronet, in whom the feudal estate had for a long time been allowed to stand), whereby, with consent of all concerned, the estate was disponed to Sir Robert Dalyell and the heirs of his body, whom failing, in the events which happened, to his sister Mrs Cornwall Dalyell and the heirs of her body, whom failing to the pursuer and his sisters. It was, however, declared that the conveyance was made under certain burdens and conditions (repeated from Miss Elizabeth's settlement), the general purpose of these being, not to constitute an entail—for the power of disposition was left unfettered—but to secure that in the event of any sale or excambion, or alteration of the order of succession by Sir Robert Dalyell, or by any of the heirs called after him, there should, inter alia, become payable to the pursuer and his sisters the sum of £10,000. It is on the language by which this general intention was sought to be carried out that the question which I have to decide arises.

I do not propose to quote the various clauses on which the question turns. They will be found at length in Miss Elizabeth's deed, and in the ultimate disposition by her trustees. I shall only state the conclusions at which I have arrived, which I hope will be intelligible upon reference to the deeds.

In the first place, I do not consider that the pursuer has succeeded in showing either that any real burden exists in his favour, or that there was any intention on the part of Miss Elizabeth that such real burden should be created. Miss Elizabeth does appear to have intended that in certain events the disponee or heirs-substitute succeeding to the estate should be bound to create certain real burdens over it, and particularly one in favour of the pursuer and his sisters. She appears also to have contemplated that her trustees should in some way make provision for certain real burdens emerging so as to affect the estate in certain events—not including, however, any event which has yet occurred. But it is, I think, quite impossible to hold that any real burden was in fact constituted, or that Miss Elizabeth's trustees would have been justified in constituting any real burden operative in the pursuer's favour, in the event which has happened, of a gratuitous disposition of the estate to a stranger to the destination.

Taking this view, I do not find it necessary to consider how far there is anything in the defenders' point that a real burden cannot competently be constituted in connection with a contingent debt. Neither do I think it necessary to decide—what might be a question of more difficulty—how far it would be competent to dispone an estate under a real burden which was not to be a real burden from the first, but only to come into existence on such a contingency as a sale or alienation of the estate. These are points more difficult than any with which I have to deal. Real burdens have, as we know, rules of their own. They require to be not only definite, but to be expressed in the most clear and perspicuous language; and while it may be, as the pursuer argues, that in a question inter hceredes the intention of the truster, and not the language which her trustees have used, must form the rule, still I cannot but feel, that even assuming the intention here to be in the pursuer's favour, there would have been grave difficulties in his way if his case depended on establishing the existence of a real burden such as would affect the estate on the defenders' succession, and be good, e.g., in bankruptcy, and in a question with the defenders' creditors or onerous disponees.

But while against the pursuer on this

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part of his case, I have not been able to see a good answer to his second and alternative contention, viz., that the defenders, as gratuitous disponees of Sir Robert Dalyell, must take the estate subject to the conditions and obligations to which he was subject, and are therefore bound, so soon as his disposition in their favour becomes operative, either to pay the pursuer and his sisters the £10,000 in question, or to execute such deeds as will constitute over the estate a real burden for that amount in their favour. That contention is quite apart from that with which I have been dealing. It is one thing to create a real burden; it is another thing to impose on the heirs of a gratuitous investiture a personal obligation to create such a burden, or pay a sum of money as the alternative of not doing so. There are here (I mean in the latter case) no technical difficulties. There is, so far as I know, no difficulty in imposing on a gratuitous disponee or his gratuitous successors any obligation which the granter may think fit to impose. Nor can it make any difference whether such an obligation is absolute or contingent, or whether the contingency is a certain or uncertain event, or whether it depends on some act of the granter or on some outside occurrence. The obligation may of course become valueless. It may become so by the grantee's bankruptcy. But it cannot be defeated otherwise by any act of the grantee; and if well imposed, I know no principle on which it should be denied effect according to its terms. The only question is, whether on the just construction of the grant it was intended to be imposed.

Now, I do not think there is much room for doubt that, according to the just construction of Miss Elizabeth Dalyell's trust-deed, her brother (the disponee) and his heirs-substitute after him were, in the event of their disposing of the estate, put under the obligation to pay £10,000 to the pursuer's family, or what comes practically to the same thing, to create a real burden for that amount over the estate in their favour. It was not indeed suggested that the deed could bear any other construction. The only points made by the defenders on this part of the case were two; and I am not sure that they were pressed with much confidence.

It was said, in the first place, that the word ‘disposed,’ occurring in connection with the words ‘sold and excambed,’ must be read as applying only to sales and excambions, and not as applying to gratuitous dispositions. I confess I see no reason for this restriction, which would plainly be inconsistent with and indeed destructive of the whole scheme and object of the truster. The word ‘disposed’ is, I think, really used as in contrast to ‘sale,’ and I see no meaning it could have except as applying to gratuitous dispositions. Moreover, the obligation which follows, viz., that £10,000 ‘shall be paid out of the lands if sold, or created a real burden on the lands if they should remain unsold,’ while quite appropriate if directed against a gratuitous disponee representing the supposed disponer, would be quite meaningless if the only thing in view was sale or excambion.’ I put it to the defenders' counsel if they could suggest any meaning in that view, and they could suggest none.

It was, however, said further—and this was really the defenders' main contention—that it being the truster's declared object, as expressed in her trust-disposition, ‘that the said lands and estate of Binns shall be preserved and maintained whole and entire in lineal descent in my family in all time to come,’ and the defenders' family being nearer in the legal order of succession than the pursuer's family, and being excluded from the succession, not by Miss Dalyell's trust-deed, but only by her second codicil—the disposition to the defenders by Sir Robert Dalyell was not a ‘disposition’ in the sense of Miss Dalyell's trust-deed, and did not carry with it the obligation to provide £10,000 to the pursuer's family.

In my opinion, this is not a sound view of the truster's settlement. The trust-disposition and codicils must, I think, be read together; and being so read, they prescribe a certain order of succession, which must be held to be the order of succession which it was the truster's ultimate intention to maintain. That being so, I do not think it possible to treat a disposition which carries the estate to persons outside that order of succession as being at all different in the sense of the settlement from a disposition in favour of a stranger.

Altogether, I think the pursuer may obtain decree substantially in the terms of his second and alternative conclusion. But I shall so express the interlocutor that the defenders' obligation will be satisfied either by payment of the money or by the creation of an effectual real burden over the estate for the amount.

I should perhaps add that no objection was taken to the—in some views—hypothetical character of the declarator which the pursuer asks. Both parties concurred in asking a judgment defining their rights; and in the view that the defenders are probably at present fiars of the estate, subject merely to defeasance of their title on a practically impossible event, I see on the whole no sufficient reason why I should refuse to deal with the question which they have submitted for decision.”

The defenders reclaimed, and argued—1. Whatever was Miss Dalyell's intention, the law would not recognise any such fettering burden as the pursuer contended for. It was repugnant to the grant of the fee—an attempt to give a fee but withhold the full rights of a fiar. It was also a novel attempt to create an entail without complying with the Entail Acts. The burden sought to be enforced might be as large as the value of the whole estate—Rutherfurd Act 1858 (11 and 12 Vict. cap. 36), secs. 43, 47, and 48; Dempster, 1857, 3 Macq. 62; Munro v. Butler Johnstone, December 18, 1868, 7 Macph. 250; Chaplin's Trustees v. Hoile, October 30, 1890, 18 R. 27. 2. Sir Robert's disposition did not involve the penalty contemplated by Miss Dalyell. He had neither

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sold nor excambed the estate. The words “disposed of” only occurred once, and were (a) superfluous, or ( b) redundant, or (c) explanatory of sale, or ( d) applicable to the case of part of the estate being sold, or (e) applicable to the case of bringing in Osborn Dalyell contrary to Miss Dalyell's wishes. If they pointed to the case of gratuitous disponing, that must be such as defeated Miss Dalyell's clearly expressed wish that the estate should be kept in the direct lineal line. This line had been observed more closely by Sir Robert than by Miss Dalyell. To give effect to the pursuer's contention would be to defeat Miss Dalyell's intention by dispersing the estate. 3. No real burden had been created. The Lord Ordinary's judgment was right on that matter. The words were not sufficiently definite, the persons in whose favour it was to be created were uncertain, and the time was indefinite, for it was only to be created upon a contingency which was far from clear. A real burden was one which affected the lands from the date of the deed creating it, no matter who took them, and whether gratuitously or onerously—Ersk. ii. 3, 50; Forbes v. Gordon, December 14, 1833, 12 Sh. 219. 4. There was no obligation upon the Wilkies to pay £10,000, or create a real burden for that amount before taking the estate. This was not a question of faculty to burden, but of obligation to burden, and accordingly was to be very critically considered. The obligation was not so clearly and unambiguously expressed as to affect the defenders.

Argued for the respondent—1. There was no question of repugnancy here, and the provisions of the Entail Acts had no bearing upon the question. The sum of £10,000 was far within the value of the estate. 2. The defenders wished to strike out the words “disposed of,” but they had an intelligible meaning. They applied to cases of gratuitous alienation, and of altering the line of succession laid down by Miss Dalyell—in fact to the case which had occurred. Had Sir Robert sold the lands, the heirs of George Falconar would undoubtedly have got £10,000 out of the price, but Miss Dalyell had provided for their getting that, or the creation of a real burden to that amount if there was disposal although no sale. 3. The trustees of Miss Dalyell were bound to create a real burden upon the lands, and had done so. The contingency did not prevent a real burden being created— Erskine v. Wright, March 1, 1843, 8 D, 683; Stewart v. Gibson's Trustee, December 10, 1880, 8 R. 270. 4. Miss Dalyell had laid upon any gratuitous disponer—here Sir Robert—the obligation to create a real burden, which obligation passed with the lands as a “reserved faculty” would have done. Or at all events, there was a personal obligation upon gratuitous disponees—here the Wilkies—to pay £10,000, or create a real burden upon the lands as a condition of taking the lands—Bell's Prin., secs. 915, 916; Wyllie v. Ross, November 12, 1825, 4 S. 174; Magistrates of Arbroath v. Dickson, March 19, 1872, 10 Macph. 630; Storeys v. Paxton, December 7, 1878, 6 R. 293 (Lord Ormidale, 297).

At advising—