concurrence">Sherwood, J.

(concurring). — I concur also in the above opinion for the additional reason that I regard section 2127; Revised Statutes, 1889, which provides that, If “the court shall find the affidavit sufficient, the cause shall be continued, unless the opposite party will admit that the witness, if present, would swear to the •facts set out in said affidavit” and on which section the application for a continuance herein was based, and which application was read in evidence, as clearly unconstitutional, and this upon analogous grounds to those where we held section 1886, Revised Statutes, 1879, unconstitutional. State v. Berkley, 92 Mo. 41, and subsequent cases.

Section 30 of our bill of rights declares, “that no person shall be deprived of life, liberty, or property without due process of law.” In this short but momentous sentence are grouped together a. trinity of rights. Those rights constitute the triune sum total of all that governments were Organized among men to secure and protect. Each one of those rights so far as constitutional protection is concerned, is equally as sacred the other. If we can not be deprived of life and liberty without “due process of law,” no more can we be deprived of “property” without the like process.

Lord Coke said that a trial “according to the law of the land,” meant and included the right of the accused bo have witnesses sworn for him. And the “law of the land” and “due process of law” are equivalent terms. The legislature undoubtedly has a great deal of power, but it does not possess the power to make *375such statutory hearsay as is provided for in section 2127, evidence.

We have wiped out section 1886, Revised Statutes, 1879, and'I think we should also wipe out section 2127, surpa, which constitutes part and parcel of the same, vicious legislation, and was enacted at the same legislative session.

Under the old statutes (sections 8 and 9, R. S.. 1855, p. 1260; Gen. Stat. 1865, p. 673) if the adverse party admitted the truth of the facts disclosed in the affidavit, and agreed that they be received in evidence, then the continuance might be denied; but there was an absolute admission of the truth of the facts as stated, while under the present regime all that a party who applies for a continuance can obtain is an admission not of the truth of the statement, but that the absent witness if present would swear the way that the affiant swears he would swear, which is a long shot different from an absolute admission of truth of a given statement.

The legislature undoubtedly can authorize the taking of depositions in civil cases to be used conditionally, and doubtless may authorize a continuance to be denied upon an admission being made of the nature provided for in the statutes of 1855 and 1865, supra; but beyond this, I do not believe the legislature has the power to go. In brief, a party to a civil cause has a constitutional right to have his witness sworn for him either when personally present as a witness, or when his deposition is taken, or an admission from his adversary equivalent thereto, and that nothing short of this will answer the demands of the constitution. Beyond this the legislature may not go; since it does not possess creative power and, therefore, can not make something out of nothing, nor compel a party to accept such a *376beggarly makeshift as section 2127 offers as a substitute for the real testimony of a witness.

Besides, under section 2127, the “opposite party may disprove the facts disclosed, or prove any contradictory statements made by such absent witness,” and this without laying any foundation therefor, thus overturning one of the very fundamentals of the law of evidence and diminishing the feeble force of the quasi admissions made by the same party. People v. Vermilyea, 7 Cow. 369.

If these views are correct, then the application for a continuance herein constituted no evidence at all of anything therein stated; was worthless, and when this is the ease, no grounds of objection thereto need be stated. State v. Meyers, 99 Mo. loc. cit. 120, and other cases.

Burgess, J., concurs in these views.

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