Burchett versus DURDANT discuss Montgomery v Montgomery ir Eq r Jo lat apply  Allgood v black lr ex lr ex refer to Vangrutlen v Foxwell a c vent raym Jones  pollexfen lev ray in a writ of error upon a judgement in a ejectment in the  king bench where the plaintiff mary Durdant declare upon the demise of William  Durdant of two message acre of land c in Chobham in the county of Surrey  Ventris er p upon not guilty the jury give a special verdict that Henry wicks  be seize in fee of the premise and by his will in write date the that of June  he devise in the word follow videlicet I give to my cousin John Higden and his  heir during the life only of Robert Durdant my kinsman all those my message c  in Chobham in the county of Surrey upon this trust and confidence that he the  say John Higden and his heir shall permit and suffer the say Robert Durdant  during his life to have and receive the rend and profit thereof which shall  yearly grow due and Payable be the say Robert commit no waste and from and  after the decease of Robert Durdant then do I give the say land and praemisses  in Chobham unto the heir male of the body of he the say Robert Durdant now  live and to such other heir male and female as he shall hereafter happen to  have of his body and for want of such heir then to the use and behalf of my  cousin Gideon Durdant and the heir of his body and for want of such heir the  same to be and remain to the right heir of I the say Henry wicks they find  that wicks die the d of December car seize as aforesaid and that John Higden  enter and be seize prout law postulate and by deed bear date the saint of Jan  car recite the say will and that the say Robert Durdant and Gideon Durdant  have contract with the say John Higden for the sale of the say message land  and premise and to the intent that the contingent remainder by the say will  limit to the heir male and female of the body of the say Robert Durdant may be  extinguish and destroy he the say John Higden by the appointment of the say  Robert Durdant do surrender his estate in the premise to the say Gideon  Durdant and by the say deed it be covenant that the say Robert Durdant John  Higden and Gideon Durdant shall levy a fine of the premise which shall be to  the use of the say John Higden and his heir Ventris they find that a fine be  levy accord in easter term car they find that Robert Durdant die on the that  of August car and that John Higden after in car upon a valuable consideration  in money feoff John butcher of the premise and that the say butcher die the  saint day of October in the same year and that the premise from he come to the  defendant butcher who enter into the premise and become seize prout law  postulate and they find that Robert Durdant as well at the time of the say  will make as at the death of the say Henry wicks have a only son call George  Durdant who be also godson to the testator and that the say George Durdant die  and that William Durdant lessor of the plaintiff be his son and heir and enter  and make the demise prout c si super totan means c upon this special verdict  judgement be give in the king bench for the plaintiff and the court here  afterward have hear the case thrice argue do affirm the judgement and the  first point speak to be whether the estate do not execute in Robert Durdant by  the statute of h of use for if so he will be seize of a estatetail and then  butcher will have a good title it be clear land may be devise to the use of  another as in Pophana it be true a devise imply a consideration and will lodge  the estate in the devisee if no use be limit upon it here it be devise to John  Higden and his heir upon trust and confidence that he shall permit and suffer  c the word trust be proper for the limitation of a use and the estate shall  execute unless it be first limit to the use of a man and his heir in trust for  another there the intention be that it shall be only a trust and here Robert  Durdant be restrain only from do waste which show that be intend he shall take  a estate or else he can not commit waste the court overrule this point and  resolve it to be only a trust in Robert Durdant for the word be that Higden  shall permit he to take the profit which show that the estate be to remain in  Higden and for the restraint of waste it be proper for Higden be to permit  Robert Durdant to have the possession but the testator will not have he to  commit waste or spoil this be deny to be law salk but land may be devise to a  use though the statute of will be since the statute of use more cro devise to  trustee and their heir on trust to permit a to take the profit for his life  and after the trustee to stand seize to the use of the heir of the body of a  the who ere be whether a have a estatetail execute and judgement be give that  he have and hold that will have be a plain trust at commonlaw and what at  commonlaw be a plain trust of a freehold or inheritance be execute by the  statute which mention the word trust as well as use salk Broughton and Langley  and Lutw S c Ventris er p Ventris the second and principal point be whether  the remainder to the heir of Robert Durdant now live do vest in George Durdant  or be a contingent remainder it be much urge that one can not take in the life  of his ancestor by the name of heir for no one be livre hedgehog to live in    archer case a devise to Robert remainder to the next heir male of Robert and  to the heir male of the body of that heir male this be resolve to be a  contingent remainder during the life of Robert and it be say in that case that  the next heir male be as much a designation of a person as a heir now live he  that will take by purchase by the name of heir must be a complete heir to all  intent   Littl b Leon Chaloner and bowyer be case upon a devise but it be  resolve that this be a remainder vest in George Durdant for the remainder be  limit to the heir of the body of Robert Durdant now live and George be find to  be then the only son it be a sufficient designation of the person and as much  as if it have be say to his heir apparent and such a one be call heir sometime  in proceed in law where the great strictness of phrase be use as in writ of  ravishment of ware quare son b eredem to seize and carry off Inst Westminster  cap Edward the statute of treason treason to kill the heir of the king the  three point be whether George Durdant take a estatetail or only a estate for  life for it be object that if the word heir of the body be take for the  description only of the person who shall take then he must take only for life  but the court hold that they will take a estatetail for heir be nomen  proceeding by inference and be sometime so take when it be only heir in the  singular number a devise to one for life remainder to the heir male of his  body for ever this be a estatetail in the devisee Pawsey and Lowther in roll  Abr part but in case the first word videlicet heir of the body now live will  carry but a estate for life to George Durdant yet the subsequent word will  make a entail in he videlicet and to such other heir male and female as he  shall hereafter happen to have of his body this will clear vest a entail in  George he be heir of the body of Robert and survive Robert so the judgement be  affirm and writ of error bring in the house of lord and there affirm lev say  notam as to the second point the Lord chief baron atkins and justice Powell  seem to be of opinion that the remainder be contingent but in regard the point  have be upon a writ of error bring in the house of lord upon a judgement give  in the king bench in another case upon the say will adjudge to be a remainder  vest they conceive themselves bind by that judgement in the house of lord  Ventris paschae year William marl by a order of the king and Council William  Marive the judge be order to meet and all of they except Gregory Eyre and  Turton be assemble at the Lord chief justice chamber to give their opinion  concern colonel Lundy who be appoint governor of londonderry in Ireland by the  king and queen and have endeavour to betray it and afterward he escape into  Scotland where he be take and bring prisoner into England and commit to the  tower whether admit be be guilty of a capital crime by martial law commit  Ventris er p in Ireland he may be send thither from hence to be try there in  regard of the Act of habeas corpus make year car which enact that no subject  of this realm shall be send over prisoner to any foreign part but then it have  a proviso that if any subject of this realm have commit any capital crime in  Scotland or other foreign part of the king dominion he may be send from hence  to be try in such foreign place upon consideration of which proviso the judge  unanimous give their opinion that there be nothing in the habeas corpus Act  suppose he have commit a capital crime by law martial in Ireland to binder his  be send thither to be try thereupon and subscribe their name to the say  opinion and certify the same to the privycouncil note that it be say while my  Lord hale be chief justice of the king bench that one who have commit murder  in barbados and take here be send over to be try there but it be before the  habeas corpus Act