source: Caselaw Access Project

author: RyuaNd, Judge,

license: Public Domain

text:
    The State, Respondent, v. Baker, Appellant.
    1. The State v. McO’Blenis, ante, p. 402, affirmed.

      Appeal from St. Louis Circuit Court.

      Uriel Wright, for appellant.
    A review of the decision made by this court in the case of O’Blenis is respectfully and earnestly urged, 1st, because that decision was made by a divided bench on a constitutional question ; 2d, because of the importance of the question involved, regarded either as a limitation on the judiciary department of the government, or as a personal security of the citizen against the oppressive action of the government; and, 3d, because of the grounds on which the decision is put by the majority of the court.
    If the reasoning of this decision be properly understood by me, several propositions, urged in my former argument, are conceded, viz : 1st, It is granted that the provision of the bill of rights, supposed to have been violated, did not establish or seek to establish any rule of evidence ; 2d, It is conceded that it was not the object nor the effect of that provision to secure the right of cross-examination ; 3d, It is conceded that the provision contemplates and provides for this meeting "of the accused and the witnesses against' him in ‘ ‘ that tribunal where his guilt or innocence is to be finally passed upon” — that is, before the traverse jury; 4th, It is admitted that this right is an important and valuable personal security — valuable as a test of the truth or falsehood of what is sworn by the witness against him ; but it is insisted that the right is not secured in all cases — that the provision is not universally applicable — that it establishes only a wise general rule — that there are exceptional cases out o£ its operation — and that the case at bar was one of the exceptions. The decision is further understood to maintain that the exceptions were as well understood as the rule out of which they came ; and that as a consequence of this knowledge,- in adopting the rule the framers of our bill of rights must be understood as adopting the exceptions.
    The result of the reasoning employed in the decision is, that to express in words the true meaning of the bill of rights, it should be read in some one or all of the following phraseolo-gies : 1st, “In all criminal prosecutions the accused has the right to meet the witnesses against him face to face, except in cases of dying declarations in reference to the same homicide, and in cases where the deposition of a witness has been regularly taken in a judicial proceeding against the accused in respect to the same transaction, and in his presence, when the subsequent death of the witness has rendered his production in court impossible;” or 2d, “In all criminal prosecutions the accused has the right to meet the witnesses against him face to face, except in cases where necessity, or the proper administration of justice shall dispense with the 'presence of the witness in open courtor 8d, “ Except in eases wherein necessity shall render a resort to subordinate evidence proper in furtherance of justice or 4th, “ Except in cases where, by the rules of the common law, subordinate testimony is legal.”
    I. An exception to a provision so fundamental as the constitutional declaration of the rights of a people can only be declared by the instrument itself. This is a clear result deduced from the nature and object of the instrument. It is organic, fundamental law — the only law that is fundamental, because unchangeable by the organism it creates. It is binding on all the parts of that organism — that is to say, on every department of the government. No modification, not the slightest, can be made of it by the judiciary, by the executive, or by the legislature. It is a prohibition on all, and its only sensible foundation is distrust of all. A power in either department of the government to declare exceptions to its provisions not therein made, is incompatible with the idea of prohibition in the instrument. It is no longer a prohibition on that department which can make the exception. The power to create exceptions is a power above the constitution ; and the power to declare exceptions not declared in the instrument is a power to create exceptions. The appellatives “ wise,” “ expedient,” “just,” “necessary,”' applied to the exceptions created, constitute no limitations of the creating power ; nor are they palliatives of the power exercised ; much less are they authority. The power to create exceptions is a power to destroy the instrument. The instrument is of infinite obligation or of none. The judiciary may construe the constitution, but they must construe its words as they are written.
    U. Tried by this test, there is no exceptional case which dispenses the meeting of the witnesses and the accused before the tribunal of final judgment. Not a word of the constitution hints at such exception. The words used are words of universality. “In all criminal prosecutions” this meeting shall transpire. If it had been added “without exception,” the idea of universality would not be strengthened. The infinite comprehensiveness of of 11 all” renders ‘ ‘ without exception” a tautological platitude. The added words might show a desire for emphasis, but they could not impart it. If the trial of Baker was a criminal prosecution, it was embraced by the clause, for it embraces “ all criminal prosecutions.” Can the court strike out the word <e all” and insert “ most” or “ some or strike out “ all” and insert nothing ? And is not that precisely what the court in effect has done ? Again, why did the framers of the constitution write “ all” before “ criminal prosecutions ?” It must be assumed that they wrote it for a purpose. It must also be assumed that they chose the word to accomplish that purpose ; and it can not be denied that the word selected is the most comprehensive in our language. It can not be denied that if their purpose was to cut off all exceptions to the rule they were about to establish, the selected word was the best word in our language ' to accomplish that purpose. The only other thing necessary to the argument, to give it the force of demonstration, is to assume that they knew the meaning of the word. Even that assumption is not necessary, for it is susceptible of proof from the use they make of it in the same section. “ In all criminal prosecutions the accused has the right to be heard by himself and counsel.” (Constitution, art. 13, § 9.) Did they mean that there should be any exception to that? “In all criminal prosecutions the accused has the right to demand the nature and cause of accusation.” Did they mean to cut off exceptions to that rule? “In all criminal prosecutions the accused has the right to have compulsory process for witnesses in his favor.” Did they mean to allow exceptions to that rule? “In all criminal prosecutions on indictment or presentment the accused' has the right to a speedy trial by an impartial jury of the vi-cinage.” Was it their understanding that “ practical wisdom” or “great expediency” or “necessity” should constitute an exception to this rule ? “ In all criminal prosecutions the accused can not be compelled to give evidence against himself.” Did they mean that cases might arise in which compulsion would be lawful ? “ In all criminal prosecutions the accused shall not be deprived of life, liberty or property, but by the judgment of his peers or the law of the land.” Was it their purpose to allow an exception to this rule ? The only remaining part of this section is “in all criminal prosecutions the accused has the right to meet the witnesses against him face to face.” Is not the question as proper in this ease as in the preceding ones ? Did they mean to be understood as allowing exceptions to this rule? On what known rule of construction can the same word, applied as a word of qualification seven times in the same section, be construed to have different significations in the minds of those who employed it ? Did the framers of the constitution employ the word six times in the same sentence to cut off all exception, and in the seventh to create exceptions ; and this too in the case of a word which has no signification in the law different from its vernacular import ? Add to this the absence of all intimation, suggestion or bint by them of a difference in the signification of the word as used by them in its application to the various subjects embraced in the section, and the discrimination assumed becomes impossible. Extend the subject of inquiry to the whole instrument, and in no part of it is this discrimination a possibility. Again, in construing the bill of rights of a people, special observance of the words of the instrument is a manifest duty, because they are intended to express limitations upon the powers of the government, and prohibitions upon every department thereof. Being limitations founded in distrust of every department of the government, and essential to liberty, it must be presumed that theyare marked out with care : and since words, written words only, are employed to mark the boundaries of power, it must therefore be presumed that words are chosen for their aptitude to enunciate clearly and unmistakeably the limitations intended. Perspicuity — desirable at all times — becomes a necessity when limitations are to be put upon power, for power will not see a limitation unless it be clearly defined. In the enunciation of a bill of rights, it must be assumed that phraseology is studied. I submit with confidence that our language does not furnish a clearer paragraph than that provision of the bill of rights which is the subject of inquiry.
    III. If exceptions were recognized by the common law to the rule in question, and such exceptions were known to the' framers of our bill of rights at the time of its adoption, words of universality must be understood as intended to exclude the exceptions. In other words — because it was known that, by the practice of courts acting under the common law, cases had arisen in which the presence of the witness before the jury had been dispensed with, therefore a word of universality must be regarded as a word of exclusion. In England, before the adoption of our bill of rights, in all cases under the grade of high treason (which was governed by the statute of Edward, which demanded the witnesses in open court), the courts, acting only upon the prohibitions of magna charta, deemed it within their power to shape the rules of evidence according to the exigencies of necessity, conveniency or expediency; and under this power, in several cases, they dispensed with the presence of the witness in open court. First, They allowed evidence taken before a coroner to be read against a man after-wards charged with the homicide by indictment. Secondly, They allowed depositions, taken under Philip and Mary, on the examination of all crimes under the grade of high treason, if taken in the presence of the accused, or when he might have been present, to be read on the trial before the jury in the following cases: 1st, when the defendant was dead at the trial; 2d, when he was spirited away by defendant; 3d, when he was insane at the time of the trial; 4th, when he was sick at the time of the trial; 5th, when he was beyond seas at the time of the trial, irrespective of the cause- of his absence ; and 6th, the courts sometimes put the defendant under duress of continued imprisonment unless he would consent to the taking of the deposition. Now while the English judges thus shaped the rules of evidence, with magna charta before them, no English judge for one hundred years has permitted the deposition of a witness, living or dead, to be read against the accused on a charge of high treason. The reason of this distinction is to be found in the statute of Edward, which demanded the two witnesses in open court at the trial. The statute required the witnesses in person, “ if living but no statute demanded their presence in any prosecution but that for high treason. No act of parliament from Philip and Mary to Victoria has ever authorized a magistrate to take a deposition on a charge of high treason. And every English authority, for one hundred years, admits that on a charge of high treason, or an appeal of murder, the deposition of the witness is not legal evidence, but he must meet the accused face to face. Unless a deposition be taken under a statute, it was deemed extra-judicial ; for depositions in a criminal case were unknown to the common law. In other words, the judges of England found in the statute of Edward a prohibition or modification of the common law which they could not find in magna charta. This was “ known” and “ understood” also when our bill of rights was framed. But more was known. It was known that for a century after the passage of the statute of Edward referred to, when prisoners charged with high treason demanded the presence of witnesses against them at the trial, they were answered by corrupt pros - ecutors — aye, by some not deemed by us of “ bad eminence,” and by subservient judges claiming the judicial discretion of the common law — “ the statute of Edward is repealed.” They knew furthermore that it was not until the English nation had been “ schooled in adversity,” and “Lord Coke had suffered disgrace at court,” that it began to be conceded the statute of Edward was in force and had been from its passage. (See Foster Crown Law, .) Now if all this was known to the framers of our bill of rights in 1820 — and that is the assumption — let us see on what knowledge they acted, whát precedents they followed, or guarded against, when deliberating on the question, shall the presence of the witness against him in open court, before the tribunal having the power to pass finally upon his guilt or innocence, be the right of the accused ? Is it a right so important that it should be set down in the bill of rights of a free people ? If s'o, shall it be absolute, or shall it exist under modifications ; and if so, what modification ? First, It was known to them that the rules of evidence, according to the course of the common law, did not allow the right to be absolute; but on the contrary dispensed with the presence of the witness as often as necessity or convenience or a practical wisdom might determine. Secondly, It was known that the provision of magna charta — “no person shall be deprived of life, liberty, or property, but by the judgment of his peers or the law of the land” — as construed by the judges of England, did not secure the right. On the contrary, they held that in virtue of the common law there was a dispensing power in the courts, the measure of which was the power to mould the rules of evidence so as to meet the exigencies of proof — a power which necessarily included the right to declare those exigencies as they might arise. Thirdly, It was known that the words of the statute of Edward, demanding the presence of the witnesses, if living, in all cases of high treason, had been judicially expounded in England to contain a prohibition not imposed by magna charta upon the course of the common law.; and that by virtue of that prohibition no deposition of a witness, living or dead, was competent evidence against the accused on a charge of high treason. With these lights before them, several alternatives presented themselves to the framers of our bill of rights. First, They might say, the right is important, but — as it is recognized by the common law, and is familiar to that system, and generally obtains in practice, subject as is every other rule of the common law to modification under circumstances — and as the common law is a system which is already adopted by our statutes, we will trust the thing to the judicial legislation of the courts, and to such other regulations as the general assembly may deem wise and expedient from time to time ; we will not fetter either the courts or the legislature by declaring the right to be fundamental, or by prescribing its extent; it shall not be set down; it is not fundamental. Second, They might say, this is a fundamental right, and ought to be secured against invasion, but it shall be absolute only in a certain case — a criminal prosecution for treason, as in England; in all other criminal prosecutions the right shall exist according to the course of the common law. Third, They might say, the right is fundamental and should be secured, and be absolute, except in certain specified cases ; or, Fourth, They might say, the right is fundamental, and should be enjoyed as a right absolute in every criminal prosecution of whatever grade of offence, and be exempt from invasion by the legislature or the judiciary in all cases. Now, it must be admitted that they were not willing to leave this right in the keeping of the common law — or within the good sense, sound discretion, and love of liberty, of the general assembly — or within the joint operation of the written and the unwritten law. If they designed to make the right absolute in all prosecutions for treason, a transcript of the statute •of Edward would have put the right beyond the power of any judicial precedent in England, except such as were made in bad times by subservient judges. If they designed to go further than to provide for a prosecution for treason — if they resolved to provide for all criminal prosecutions, but intended likewise that the right should not be so absolute, in any grade of accusation, as not to yield to exigencies — they had first to determine what exigencies should subordinate the right, and then point them out. If the judicial precedents of England were looked to on this question of policy, and they deemed them, all of them, safe and just relaxations of a fundamental principle of liberty, it was an easy work to engraft them on the constitution. If some of these precedents were deemed unwise or of doubtful expediency, a discrimination at once became necessary. And if, as I sincerely believe was the case, they looked at those English precedents, and saw their source as well as-operation — saw that every relaxation was a rule or law made by the judges to meet an exigency as it arose, they being the power to determine the exigency as well as the authority to declare the extent and mode of the relaxation they could not fail to see that it was idle to attempt to give fixedness and permanence to any constitutional principle, if they subjected it to the power of judicial legislation. Ry the common law nothing is fixed — nothing is fundamental. It does not recognize any rule as “stiff and unbending.” It is a vast system of rulfes of which it has been said, “they grew and were not made.” * * * * The essential idea of a constitutional right is that it can not change — that it is so “ stiff” it can not “bend” without breaking. * * * * The case of The State v. Atkins, 1 Overton, Tenn., 229, was the 'only precedent in point at the time of the framing of our constitution. * * It is said, “ the great security of the accused, after all, is in the fundamental principle of the common law that legal .evidence consists in facts testified to by some person who has personal knowledge of them, thus excluding all suspicions, public rumors, second-hand statements, and, generally, all hearsay testimony, whether oral or written, from the consideration of the jury.” The framers of our constitution manifested at least solicitude to throw around the accused every bulwark which might protect innocence against an unjust or wicked governmental prosecution, but they did not provide for him this greatest of all securities. The next general assembly may declare hearsay testimony legal and competent in all cases, and break no commandment of the constitution. The rules of evidence are not to be found in written constitutions. The legislative and judiciary departments of the government are trusted in this behalf. * * * But while the constitution does not provide what the witness shall say, it does provide the greatest security the wisdom of man has devised that what he does say shall be true. It does not provide that the witness shall speak only what he knows, but it does furnish a security that he shall not hurtfully to the accused say more than he knows. This greatest of all constitutional securities is presence — the presence of the witness face to face with the accused before that tribunal which holds the awful power of judgment. * * This security has been denied the defendant. * * English and American judges have confounded the right of presence with other and distinct rights. They have confounded it with the other right of cross-examination. Cross-examination is not presence ; nor is it a constitutional right. Others have confounded presence at the trial before the jury with presence elsewhere, and have treated presence elsewhere as a satisfaction of the constitution. Others base their decisions on the danger of enforcing this constitutional right in every case. Others rely upon the policy of subordinate rules in furtherance of justice. The constitutional provision is superior to policy. There can be no policy in denying a constitutional right. So too it has been thought that if the State can not be permitted to read a deposition against the accused, the accused can not be permitted to use a deposition in his defence. Was the bill of rights made for the protection of the State ? There is not the shadow of a pretence for reciprocity of rights in the case. The American decisions cited contain concessions which, logically give up the question. * * * *
    Why, I ash, are the facts contained in the deposition of a dead or absent witness not entitled to “ full faith” at the hands of the jury who are to consider them ? It is not because they are not facts sworn to by a witness who has personal knowledge. That is not the reason. If faith in the facts communicated be shaken, it is because of the absence of the witness— because the only test of their truth or falsehood provided by the constitution is taken from the jury. The presence of the witness is wanting, and that is all that is wanting ; what is wanting is the very thing the constitution says shall not be wanting. * * * But how are the jury to determine the extent of their “ faith” in the “ facts thus communicated?” How are they to determine what would have been the measure of their faith in the witness if they had seen and heard him swear, so as to deduct the loss against the deposition ? It is too manifest for further elaboration that on principle the thing can not be done ; and in practice, the deposition is taken for truth, unless it be contradicted by itself or by independent evidence. * * *
    When our constitution took up this principle of presence it is admitted the principle became fixed and unbending, but it is insisted the exceptions went with the principle. If so, the exceptions became by their elevation fixed beyond the reach of legislative or judicial action. It is apparent from this assumption that it is a matter of the greatest importance to know what exceptions went up with the principle. Are they only the exceptions declared by the English courts before the adoption of our constitution ; or do they embrace such as may thereafter be declared by the courts as falling within the reason of the previous exceptions ? I have shown that the declared exception of the deposition of a dead witness did not spring from any actual necessity ; but if the basis of that exception be an assumed necessity, assumed and declared by the common-law courts of England creating the exception, are those exceptions, which hereafter may be declared by the English courts of common law or our own to rest on tbe ground of sucb necessity, to become part of tbe constitution also ? Again, are tbe constitutional exceptions to extend beyond tbe ground of assumed necessity ? Some of tbe exceptions created in England by tbe courts do not even purport to rest on necessity ; for example, tbe cases of tbe sick witness — tbe witness unable to travel — tbe witness wbo bas gone across tbe straits of Dover to Calais, and is therefore “ beyond seas” — tbe witness wbo bas been spirited away — are cases of exceptions created from inconvenience, less ' or greater as tbe case may be. They rest upon a policy no bigber than that wbicb allows depositions to be taken de bene /esse. Are these declared exceptions part of our bill of rights ? .And cases wbicb shall hereafter arise coming within this mischief of inconvenience — declared judicial inconvenience — will they doo make part of tbe fundamental law ? If tbe exceptions wbicb went up with tbe principle into tbe constitution are sucb as rest or are supposed to rest upon necessity, tbe courts must declare tbe .necessity, and they will follow tbe precedents — they will bold that to be necessity which bas been judicially so declared. If tbe wider basis of inconvenience shall determine -.the exception, what is inconvenience will be reached by tbe same .process. Already bas it been decided by tbe St. Louis Criminal-Court that the deposition of a witness (taken before tbe examining, magistrate) wbo was out of tbe state at tbe time of tbe trial was competent evidence against tbe accused. How long will-it be before an absence of sixty miles from tbe place of •trial shall be deemed judicial inconvenience sufficient to let in •a deposition? One step more — if tbe bill of rights be not dn tbe way, why shall not depositions be read in criminal as :in civil cases, since tbe rules of evidence in both cases are tbe same ?
    I submit that exceptions are excluded by our bill of rights. 1st. Because no exception is declared in tbe constitution. 2d. Because, with a knowledge of many relaxations of the principle, while it remained a common-law principle, a word of universality is introduced which was unknown to tbe common law. §d. Because any exception is necessarily a total surrender of tbe principle itself in the excepted case. 4th. Because the statute of Edward was designed and had the effect to cut off the common-law relaxations of the principle which had. grown into precedents prior to its passage ; and our bill of rights is stronger against relaxations than was the statute of Edward. 5th. Because the letter, the clear letter, of the constitution, is against all exceptions. 6th. Because its letter is supported by a manifest and admitted reason. 7th. Because if the letter. and reason of any provision of our bill of rights are not conclusive as a prohibition on the judiciary department of the government, there is no limitation upon judicial power. 8th. Because no suggestions of policy or necessity can modify or relax a constitutional right, though announced judicially by a hundred precedents. 9th. Because the precedents drawn from England are not in point, except such as furnish constructions of the statute of Edward, and they are against the exceptions. 10th. Because the American precedents cited are most of them from states that have not our bill of rights, and have never gone beyond the common law and magna charta in securing the rights of a free people — (such are the states of New York, South Carolina and North Gatolina) ; and the remainder are based upon reasoning — repudiated by this court— which demonstrates a total misconception of the design and object of the clause in question, and which involves a confusion of the right secured with other and independent rights secured in the instrument; and also because they are based upon the previous precedents made under the common law and the charter ; and lastly, because, if they were in point, they are not authority here.
    IV. As to dying declarations, the courts put them on the ground that the dying man is not the witness; the witness is he who swears to them in open court in the presence of the jury and the accused ; and therefore the constitution is not violated. But ingenuity has never yet been astute enough to make the officer, or scrivener under his direction, who testifies to what is called the preliminary proof, the witness in the case. If a constitutional, right can be turned by .such strategy, it ceases io be a thing of value.

      H. A. Clover, (circuit attorney,} for the State,
    relied on the case of the State v. McO’Blenis.
   RyuaNd, Judge,

delivered the opinion of the court.

The defendant was indicted at the September term, 1854, of the Criminal Court of St. Louis county, for wilfully, felonious" ly, on purpose, and of malice aforethought, assaulting, cutting, wounding and mutilating William 0. Hoffman, with a knife, then and tüere being a deadly weapon. The act was charged to have been committed on the 14th day of March, 1854, at St. Louis, in St. Louis county.

The second count charges the act to have been done felo-niously, on purpose, and of malice aforethought; and to have been done violently, cruelly, immoderately, and by means likely to produce death and great bodily harm ; — charges the cutting, wounding and mutilating as in the first eount.

The third eount charges the assaulting and scourging with a cowhide, and cutting and wounding with a knife, to have been done feloniously an<f wilfully, and by the act and procurement of said Baker, giving, by such wounding, cutting, beating and scourging, unlawfully.and feloniously, great bodily harm to said Hoffman, so that his life was endangered and himself wounded and disfigured.

The defendant pleaded not guilty; a change of venue was taken from the Criminal Court to the St. Louis Court of Common Pleas, and a second change to the Circuit Court of St. Louis county. The defendant was found guilty under the third count’, and acquitted on the first and second counts.

The State produced as a witness S. C. Simmons, who testified that he was recorder of the city of St. Louis in March, 3:854; that the paper sworn to him is the official examination made by him as recorder in the case of the State v. Wilson C. ¡Baker, Milo Smith and Benjamin Embree, on the charge of feloniously wounding William 0. Hoffman, with intent to maim. Baker, the defendant, was present at the examination by himself and his counsel, U. Wright. Hoffman was sworn and his examination written down by the clerk of the recorder’s court, and Hoffman subscribed his signature to the same when taken in the presence of the defendant Baker ; and at the time of the examination, conducted under my direction as recorder, Smith was discharged and Baker and Embree bound over to answer to the Criminal Court. I, as recorder, attested the examination, and when certified by me, as it now appears, it was handed over to my clerk. Hoffman is dead. I saw him dead not a great while after the examination. Baker and Embree gave bail. The clerk of the recorder’s court is appointed by the mayor; the office is created by ordinance. Hoffman’s death was not caused by the injuries for which the examination was had. He died from another cause.

The paper referred to by the witness was then offered in evidence by the State and objected to by the defendant as incompetent evidence under the constitution, and as irrelevant evidence under the issues of this caiise. The court overruled the objection and permitted the paper to be read in evidence. The defendant excepted to this ruling and saved the point. I am unwilling to insert this paper in the opinion of the court, because such a detail of facts had for the honor of humanity better remain where few will have occasion to read it. The testimony of the physicians who attended to the wounds of Hoffman and managed the case for him is also omitted. The testimony shows a most cruel and inhuman infliction of injuries and wounds on the naked body of Hoffman, and in such number and on such parts of his body as at least to have caused great bodily harm, if not to have endangered life. The record shows that every instruction asked for by both parties was given. Many of these instructions relate to the first and second counts in the indictment, and therefore are not necessary to notice, as the jury found the defendant not guilty of the offences in these counts.

The third and eighth instructions are those principally complained of by tbe defendant. Now in regard to instructions we must look at tbe evidence offered and given before tbe jury. Tbe third instruction as well as tbe eigbtb must be considered in relation to tbe case as made out. Tbe court did not intend nor could tbe jury understand that by tbe wounding mentioned in this instruction any accident or unintentional wounding was meant. When the facts in proof are considered, tbe instruction was not liable to mislead tbe jury; it must be understood in reference to tbe case made out before them. We can not reverse by reason of any thing said against this instruction. Tbe sixth and seventh instructions put tbe case very fully and fairly before tbe jury; and tbe defendant can not complain of any thing in tbe eigbtb instruction with propriety. This instruction is very lengthy, and unnecessarily embraces hypothetically many of the facts detailed in proof, and is liable to criticism ; but this court is not satisfied that any illegality is contained in it, or that it operated on tbe minds of tbe jury preju-dicially to tbe rights of tbe defendant.

Upon all tbe questions arising then on this record, except tbe admissibility of tbe examination of Hoffman before tbe recorder’s court, this court is unanimously of opinion that there is no error. Tbe question on admitting that examination has been heretofore settled by a majority of tbe court in tbe case of the State v. McO’BIenis. Judge Ryland dissents on this point, and refers to bis opinion in tbe O’Blenis case. ' Tbe judgment of tbe court below is affirmed ;

Judge Ryland dissenting on the one point only.
      The case of the State v. McO’Blenis was decided at the March term, 1856; that of Baker at the October term, 1856. The constitutional question involved in the cases of O’Blenis and Baker has again come before the Supreme Court in a somewhat different form. In the case of Houser, indicted for murder, the St. Louis Criminal Court, upon the trial, admitted in evidence against the accused a deposition taken before the committing magistrate, where it appeared that the witness was out of the state. There was no proof of her death. Houser was convicted of murder in the first degree — [Rep.


author: Scott, Judge,

text:
    Farrar & Sweringen, Respondents, v. Christy’s Administrators, Appellants.

    1. William Christy, being seized in fee of four lots in the city of St. Louis, by deed dated September, 1832 — his wife Martha T. joining in the conveyance — conveyed the same to their two sons Edmund T. and Howard E. Christy; the lots were conveyed by separate metes and bounds, two lots to Edmund and two to Howard. The deed contained the following haben-dum : >£ to have and to hold the premises aforesaid with all the appurtenances thereunto belonging to them and their heirs forever, upon condition! that should either of the grantees herein named die without leaving legal heirs of their body, the survivor shall inherit the whole of the property hereby conveyed ; and should both grantees die without leaving legal heirs as aforesaid, the property hereby conveyed shall revert to the other legal heirs of the said William and Martha T.” Edmund T. Christy died in the year 1840, without leaving heirs of his body, he having never been married. After the death of Edmund, the heirs of William and Martha T. Christy, by deed dated October 7th, 1842, released to Howard E. Christy all their u right, title, interest, estate and expectancy” in and to the said four lots; this deed of release contained the following recital: “ which lots of land were held to said Edmund T. and Howard E., in the manner specified in said deed, with cross remainder to the survivor, and also on a certain contingency with remainder to the heirs general of said William Christy and Martha T. Christy,” &e. Howard E. Christy executed a bond of even date with the above release in the penal sum of $3000 to James T. Swerin-gen and Martha his wife — the said Martha being one of the heirs of William and Martha T. Christy; the said bond contained the following condition : “ The condition of the above obligation is such, that whereas, &c., [reciting the conveyance of September 20th, 1832,] and whereas, upon the happening of certain contingencies in said deed mentioned and contained, the said property, lots and parcels of ground therein specified would by the terms of said deed revert and belong to the heirs of the said grantors in said deed, of whom the said Martha, wife of James T. Sweringen, is one ; and whereas the said James T. Sweringen and Martha his wife have, by their deed made jointly with certain other heirs of the said William Christy and wife, executed to the said Howard F. Christy a release and quit claim of all such right, title, interest, estate and expectancy in and to said property, as they would have been entitled to by virtue of the first mentioned deed upon the happening of said contingencies, had not said release been executed: Now, if the contingency in the first deed mentioned shall happen, whereby the said obligees or their heirs would have been entitled by virtue of said first mentioned deed to said property, or any part thereof, or any interest in the same, had not said release been executed, and the said Howard F. Christy, his heirs, executors or administrators shall well and truly pay to the said James T. Sweringen and Martha his wife, their heirs, executors, &c., the value at the time of happening of said contingency of the portion, part or interest which the said Sweringen and wife, their heirs, executors or administrators would have been entitled to in said property in said first deed described by virtue of said deed, had not the said release been executed, then this obligation shall be void; otherwise shall remain in full force and virtue.” Howard F. Christy died in the year 1853, leaving a widow but no heirs of the body.

      Held, in a suit against Howard F. Christy’s administrators to recover the value of the interest in said four lots (alleged to be one-sixth) that would have vested, hut for the above release, in Mrs. Sweringen at the death of Howard without leaving heirs of his body:
    1st. That, construing the deed of September 20th, 1832, with reference to the rules of the common law, Edmund T. Christy and Howard F. Christy would have each become seized in fee tail of the two lots granted to each respectively.
    2d. That, by the operation of the act of February 14, 1825, (R. C. 1825, p. 216,) the estates tail that would have vested, but for said act, in Edmund and Howard respectively, were cut down and destroyed, Edmund taking a life estate only in the two conveyed to him, and Howard a life estate only in the two lots conveyed to him; that a remainder in Edmund’s two lots immediately passed in fee simple absolute to Howard (subject, however, to be digested by the birth of issue of Edmund) ; that a remainder in Howard’s two lots passed in fee.simple absolute to Edmund (subject to be divested by the birth of issue of Howard) ; that the remainder in Howard’s two lots, which vested in fee simple absolute in Edmund, descended upon his (Edmund’s) death to his heirs general, of whom Mrs. Sweringen was one.
    3d. That consequently there was a good cause of action on said bond, inasmuch as the release above mentioned was effectual to transfer to Howard F. Christy an interest that had vested in Mrs. Sweringen in two of the four lots embraced in the deed of September 20, 1832.
    4th. That defendants were not estopped to deny that Mrs. Sweringen took an interest in said lots under the limitations of the deed of September 20, 1832.
    5th. That no recovery could be had beyond the penalty of the bond.

      Appeal from Si. Louis Land Court.

    William Christy and Martha T. Christy, on the 20th of September, 1832, executed the following deed : “ This deed, made and entered into this twentieth day of September, eighteen hundred and thirty-two, by and between William Christy and Martha T. Christy, his wife, of the one part, and Edmund T. Christy and Howard E. Christy, of the other part, witnesseth, that for and in consideration of one dollar, to them in hand paid, the receipt whereof is hereby acknowledged, and for other good and lawful considerations, the parties of the first part do hereby give, grant and convey, and by these presents do give, grant and convey unto Edmund T. Christy [here follow the descriptions of two several lots in the- city of St. Louis] ; and the said William and Martha T. also convey as aforesaid to Howard E. Christy [here follow the descriptions of two several lots of ground in the city of St. Louis] ; to have and to hold the premises aforesaid, with all the appurtenances thereunto belonging, to them and their heirs forever, upon condition that, should either of the grantees herein named die without leaving legal heirs of their body, the survivor shall inherit the whole of the property hereby conveyed, and should grantees die without leaving legal heirs as aforesaid, the property hereby conveyed shall revert to other legal heirs of the said William and Martha T. And the grantors also condition that they reserve to themselves the entire control over the property hereby conveyed, and the rents and benefits resulting from the same, during the time that they or either of them shall live; and the said William and Martha T. do covenant to and with the said Edmund T. and Howard E. that they will warrant and forever defend the property hereby conveyed to them and their heirs forever, against their heirs and all and every person claiming through or under them or either. In testimony whereof we have hereunto set our hands and seals the year and day above written. [Signed] W. Christy, (seal.) Martha Christy, (seal.)”
    Edmund T. Christy died in the year 1840, without leaving heirs of his body. He was never married.
    In the year 1842, doubts arising as to the construction to be given to the above deed, the other heirs of William and Martha T. Christy joined in the execution of the following deed of release, dated October 7th, 1842, to Howard F. Christy: “Whereas, William Christy and Martha T. Christy, by their deed, dated twentieth day of September, eighteen hundred and thirty-two, conveyed to Edmund T. Christy about thirty feet of land fronting on Third street, being part of block ninety-one, and bounded on the south by a two story brick house, on the north by Green street, and to run westwardly with Green street half the distance between Third and Fourth streets, with about the width of thirty feet, and also forty-three' feet of said lot, beginning on Fourth street at the line which separates the Christy lot from the land owned then by J. B. Brant; thence northwardly with Fourth street forty- three feet; thence east-wardly and parallel to Green street, half the distance between Third and Fourth streets ; and also did convey thereby to Howard F. Christy about forty-five feet of the front of their land on Third street, (on which then stood a two story brick house,) bounded on the south by the line which separated then the said Christy and Brant’s land, and on the north by the northern wall of said brick building, and to run westwardly and parallel to Green street, and with the width of about forty-five feet, half the distance between Third and Fourth streets ; and they also thereby conveyed to said Howard F. Christy thirty feet of their land aforesaid, to begin at the intersection of Green and Fourth streets, thence southwardly with Fourth street thirty feet; thence eastwardly and parallel to Green street, with the width of thirty feet, half the distance between Third and Fourth streets ; which lots of land were held to said Edmund T.’ and Howard F., in the manner specified in said deed, with cross remainders, to the survivor, and also on a certain contingency with remainder to the heirs general of said William Christy and Martha F. Christy ; and whereas the said Edmund T. Christy hath departed this life without issue, and the heirs of said William and Martha T. have agreed to relinquish all their estate and expectancy in said lots to the said Howard F. Christy: now, therefore, we, Mary Ann Wright, Nathaniel P. Taylor and Matilda N. his wife, Harriet M. Dean, Edwin B. Smith and Virginia M. his wife, James E. Swerin-gen and Martha his wife, Henry S. Coxe and Mary Ann his wife, David D. Mitchell and M. Eliza his wife, and Frances S. M. Wash, (who, together with said Howard F. Christy, are the only heirs of said William Christy and Martha F. Christy,) in consideration of the premises and of one dollar to us paid by the said Howard F. Christy, do hereby grant, sell, alien, re-mise, release, and forever quit claim to the said Howard F. Christy, all our and each of our right, title, interest, estate and expectancy in and to said lots, and each of them. To have and to hold the said lots, and all our right, title, interest, estate and expectancy in the same and each of them, with all rights, privileges and appurtenances thereto belonging, unto him, the said Howard F. Christy, and to his heirs and assigns, forever. In testimony whereof, &c.”
    Cotemporaneously with the execution of the said deed of release, the following bond was executed: “Know all men by these presents, That we, Howard F. Christy, principal, and David D. Mitchell and C. J. Schaumburg, securities, are held and firmly bound unto James T. Sweringen and Martha his wife, their heirs, executors and administrators, in the sum of three thousand dollars, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Given under our hands and seals this seventh day of October, in the year eighteen hundred and forty-two.
    “ The condition of the above obligation is such, that whereas William Christy and wife, by their deed, bearing date the twentieth day of September, eighteen hundred and thirty-two, now of record in the recorder’s office of St. Louis county, in book A, number 2, p. 201 and following, conveyed to Edmund T. Christy and Howard F. Christy, certain lots or parcels of ground lying in the city of St. Louis, in block number ninety-one, and more particularly described in said deed, upon certain conditions therein specified ; and whereas, upon the happening of certain contingencies in said deed mentioned and contained, the said property, lots and parcels of ground therein specified, would, by the terms of said deed, revert and belong to the heirs of the said grantors in said deed, of whom the said Martha, wife of James T. Sweringen, is one; and whereas the said Jas. T. Sweringen and Martha his wife have, by their deed made jointly with certain other heirs of the said William Christy and wife, executed to the said Howard F. Christy a release and quit claim of all such right, title, interest, estate and expectancy in and to said property as they would have been entitled to by virtue of the first mentioned deed, upon the happening of said contingencies, had not said release been executed : “ Now, if the said contingency in the first deed mentioned shall happen, whereby the said obligees, or their heirs, would have been entitled by virtue of said first mentioned deed to said property, or any part thereof, or any interest in the same, had not said release been executed, and the said Howard F. Christy, his heirs, executors or administrators, shall well and truly pay to the said James T. Sweringen and Martha his wife, heirs, executors, administrators or assigns, the value at the time of happening of said contingency, of the portion, part, or interest which the said Sweringen and wife, their heirs, executors, or administrators, would have been entitled to in said property in said first deed described, by virtue of said deed, had not the said release been executed, then this obligation shall be void, otherwise shall remain in full force and virtue. [Signed] H. F. Christy (seal). D. D. Mitchell (seal). C. W. Schaumburg (seal).”
    Howard F. Christy died in the year 1853, married, but leaving no heirs of the body. William Christy died in the year 1837, leaving eight heirs, of whom Mrs. Sweringen was one? she being the only child of a deceased daughter of said William Christy. The last will of said Christy contained the following passage : “ Taking into consideration the present state of the remaining members of my family, I think it but just and equitable that my grand-daughter, Martha J. Sweringen, shall receive only one-half of such proportion of my landed estate as would have been her mother’s had she survived me and I had died intestate.”
    ' This suit was instituted in behalf of Mrs. Sweringen in her name and in that of Farrar, her trustee, to whom James T. SweriDgen had assigned in trust whatever interest he had acquired by virtue of contracts entered into with Howard F. Christy. Plaintiffs allege that at the death of Howard F. Christy, the interest of Mrs. Sweringen in the four lots embraced in the deed of William Christy and wife was worth $12,000, for which sum judgment was asked.
    The court instructed the jury as follows : “ 1. The deed given in evidence by the plaintiffs of William Christy and Martha T. his wife (of date September 20, 1832,) to their two sons, Edmund and Howard F. Christy, operated to convey to each one of said grantees, Edmund and Howard, and their heirs, the fee simple, the whole estate in and to the lots to them respectively conveyed by said deed ; consequently there was no estate remaining in the grantors that could by law be limited over to Mrs. Sweringen, and therefore she takes nothing as a purchaser under that deed. 2. The deed given in evidence from Martha J. Sweringen and others, as heirs of William and Martha T. Christy, of date October 7th, 1842, and the bond given in evidence from Howard F. Christy, and Mitchell and Schaum-burg, his securities, of same date, October 7th, 1842, (if the .jury find said deed and bond to be true and genuine,) do operate to estop the defendants, administrators of Howard F. Christy, to deny that Mrs. Sweringen, as one of the heirs of William and Martha T. Christy, would have been entitled to a proportionate share in the said land, upon the death of said Howard without issue, but for the fact that she had already released and conveyed her interest therein in his lifetime.”
    The following instructions asked by the defendant were refused : “ 1. The jury is instructed that the plaintiff is not entitled to recover in the present case damages beyond the penalty of the bond read in evidence by the plaintiff. 2. The plaintiff can recover nothing for the value of the share of the property in question that was conveyed by William Christy and wife to Edmund T. Christy. 3. If Edmund T. Christy died leaving debts unpaid at the present time, the same are a charge on the share of said Edmund in the property in question, and should be deducted from the value of such share in ascertaining the interest that descended to his heirs. 4. If the will of W. Christy, read in evidence, be genuine, then in ascertaining the interest of Martha J. Sweringen in the two lots conveyed by said William to his son Howard upon the death of her grandfather, the jury will allow to her one-half the share that her mother would have taken as heir of the said William.”
    The jury found for the plaintiffs, and judgment was rendered in accordance with the verdict for $12,178.

      Wm. C. Preston, R. M. Field and B. Ji. Hill, for appellants.
    I. What estates passed to Edmund T. Christy and Howard F. Christy by the deed of September 20, 1832? The court below considered that said deed gave to Edmund and Howard fees simple in their respective lots. Conceding that so far the court properly construed the deed, then Howard E. Christy owned the two lots conveyed to him absolutely, and they may be left out of the case, as they passed by his devise to his Widow. It is only necessary to inquire how Edmund’s two lots passed at his death. The court held that at his death they passed to his heirs. The court erred in holding that the limita- . tions over were void for the reason that the contingencies were too remote and tended to create a perpetuity, and because the grantors having conveyed fees simple to the grantees there was nothing remaining to limit, and so the remainders were void. (4 Greenl. Cruise, 98 note; 1 Prest, on Est. 154.) It is true that by the ancient rules of the common law there could be no future interests limited after a prior estate in fee simple. This rule however has never been applicable to limitations in wills, or conveyances deriving their operation from the statute of uses, which was in force in this state in 1832. Ever since the period of its enactment, a future interest could be limited upon a fee simple as readily in a deed as in a will, and such a quality is one of tbe cardinal distinctions between deeds before and after tbe passage of that statute.,,,.The fee simple estates on wbicb sucb limitations were made became thereby defeasible fees simple. (Den v. Sehenck, '3 Halsted, 39 ; Scanlan v. Porter', 1 Bailey, 437 ; Hart v. Thompson, 8 B. Monroe; Thompson v. Daniel, 14 B. Monroe, 694, 696; Anderson v. Jackson, 16 Johnson, 388; Chester v. Greer, 5 Humphrey; Booker v. Booker, 5 Humphrey; Edwards v. Edwards, 2 Strobhart, 101; 1 Prest, on Est. 494.) The only restrictions upon these limitations were that they must take effect during the continuance of lives in being, or in twenty-one years after-wards. Under this view it is maintained that the limitations, first to the survivor, and then to the heirs of the grantors in the event that Howard and Edmund should die leaving no lawful heirs of their body as provided in the deed, would be good and pass the property accordingly, unless the contingency upon which the estate depends be too remote. And this depends upon the construction of the words “ die without leaving legal heirs of their bodies” contained in the deed. If these words mean an indefinite failure of issue, the limitation over is void; if they mean a failure at the time of the death of Edmund and Howard, they are good, as the contingency would then occur within the period prescribed by law. These words and other equivalent expressions, such as “ dying without issue,” “ dying leaving no issue,” “ dying without heirs of the body,” &c., have received both in England and America, in many cases, a construction that leaves no- room for doubt that they refer to an indefinite failure of issue unless other words are interposed to restrict them to the time of death. It has been held that the word survivor had such an effect. When there is a limitation to two persons in esse, with remainder to the survivor, the contingency must in the nature of things occur within lives in being, and can not by possibility transgress the rule against per-petuities. The effect of the word “ survivor” has been so elaborately discussed, from the case of Fosdick v. Cornell, 1 Johns. 440, and Anderson v. Jackson, 16 Johns. 382, to Edwards v. Yarick, 5 Denio, 669, in the New York courts, and they have been so generally followed in Massachusetts, North Carolina, Kentucky, South Carolina, and other states, that it would be useless to examine the authorities in detail. In Cutter v. Dougherty, 23 Wend. 518, Mr. Justice Cowen remarked, when the point was raised, that it was too late in the day to raise such a question; that the word “survivor” limited the contingency as perfectly as the words “ dying without issue living at the death” would do. This at present is the established current of decision in America, and the same principle has long been adopted by the courts of England in decisions in regard to real estate. (4 Kent, note, 278 ; Moore v. Lyons, 25 Wend. 119.) The word “survivor,” in a limitation over, was declared in a devise of real estat to restrain the contingency properly, in the case of a fee upon a fee, and restrict it to a definite failure of issue, in the leading case of Pells v. Brown, and in a bequest of personal property, in Hughes v. Sayer, 1 P. Wm’s, 584. These cases were followed in Porter v. Bradley, B Term Bep. 143, and in Roe v. Jeffery, 7 Term Rep. 589. New York adopted the same rule in Eosdick v. Cornell, 1 Johns. 439; Jackson v. Blanshau, 3 Johns. 289; Moffatt v. Strong, 10 Johns. 12 ; Jackson v. Staats, 11 Johns. 837 ; Jackson v. Anderson, 16 Johns. 382, and a long series of decisions down to the time of Edward v. Yarrick, 5 Denio, 590, and Cutter v. Doughty, 23 Wend. 518; New Jersey, in Den v. Allaire, Spen. 6 ; and Massachusetts, in Richardson v. Noyes, 2 Mass. 56. The same rule prevails in South Carolina, (Keating v. Reynolds, 1 Bay, 80 ; Jones v. Price, 3 Desaus. 165; in Pennsylvania, in Hauer v. Shitz, 3 Yeates, 205; 2 Binney, 532 ; Coates v. Streel, 2 Ashmead, 21; Mifflin v. Neal, 6 S. & R. 461. Kentucky affirmed the case of Pells v. Brown, and Roe v. Jeffery, in Hart v. Thompson, 3 B. Mon. 487; and Tennessee, in Lewis v. Claiborne, 5 Yerger, 369, 375 ; Chester v. Greer, 5 Humph. 32, which arose on a deed; Booker v. Booke, 5 Humph. 505. Virginia has given effect in like manner to the word “surviving,” in Brooke v. Croxton, 2 Grattan, 506 ; Cordle v. Cordle, 6 Munford, 455. The whole current of authority is in the same channel, and the rule is now equally well settled in England and America, (Lee v. Stone, 1 Exchequer, 686,) and in the Supreme Court of the United States, in Jackson v. Chew, 12 Wheat. The language in both wills and deeds, in relation to such limitations, is subject to the same rules of construction, as remarked by Chancellor Kent, in Anderson v. Jackson, 16 Johns. 406. This word, however, applies only to one of the limitations, and it would follow that, although it rendered the limitation over to Howard, as survivor, good, yet there is no such word appearing to restrict the limitation over to the other legal heirs of William and Martha T. Christy to a definite failure of issue. The presence' of the word survivor renders the first limitation good ; its absence makes the ulterior limitation too remote, and consequently void. The difference is, that the first limitation is, by its-terms, restricted to take effect during the lifetime of either Edmund or Howard, whoever should be the survivor ; the other-limitation having no such restriction, could by its terms take' effect whenever there ceased to be legal heirs of the body of' Howard and Edmund Christy, though after the lapse of centu.-ries.,. The grantors in the limitation to the surviv-or intended' one of two living men to take the property; in the limitation to the other legal heirs, they did not intend them to take until the blood of Howard and Edmund Christy was exhausted, although generations might have intervened. In the first limitation the • intention of the grantors was lawful, as it contravened no rule of public policy; in the second it was unlawful as it might have rendered the property inalienable for ages. Not more than one fee can be limited after a prior fee simple, either by deed or will. The first executory.limitation of a fee- which vests destroys all subsequent limitations. The power of disposition is then exhausted. (Fearne, 515; Wilson on* Springing Uses, Law Lib., vol. 2, ser. 4.) The inferior court, it is understood, decided that all the limitations over were upon an.indefinite failure of issue and void, and rested its opinion upon Wilson v. Cockrill, and Guy v. Vaughn. There is no analogy between the terms of the gifts in those cases and in the limitations in the deed of 1832. There is no qualifying word “ survivor,” or any other expression in either of those cases to re-strict the contingency; both of these decisions-were in relation to slaves, not lands, and no rule-is better settled than that after an absolute gift of chattels, if any words of inheritance be used such as “ heirs,” or “ heirs of the body,” no subsequent limitation can be superadded, even in a will. No remainder or •contingent limitation, technically speaking, can be created in ■chattels or slaves. No contingent interest can be given in such property after a prior absolute gift. Slaves and personal property are not within the purview of the statute of uses, nor are :there in relation to their transfer any of the feudal rules or principles which linger in our law of real property. For these Treasons, it is believed that the cases of Wilson v. Cockrill and Guy v. Vaughn are not in point to show that the remainder to the survivor was void ; but they are conclusive to show that the ulterior limitation to the other legal heirs of William and Martha Christy was upon an indefinite failure of issue. To sum >up the conclusions upon this branch of the case, it is submitted, 1st, that the two lots conveyed to Howard Christy gave him an estate in fee simple therein, and that they passed to his widow, .Susan P. Christy, by his devise ; 2d, that the limitation to 'the survivor was not upon an indefinite failure of issue, and •that upon the death of Edmund T. Christy his two lots passed to Howard F. Christy; 3d, that the limitation over to the other heirs of William and Martha Christy was upon an indefinite failure of issue, and was void.
    II. The second instruction given to the jury was erroneous. Howard F. Christy was not estopped to deny that Mrs. Swer-dngen, as one of the heirs of William and Martha Christy, would ¡have been entitled at the death of Howard to a “ proportionate” ■share in the four lots conveyed to Edmund and Howard. (1 Saund. 37; Jacob v. Linsey, 1 East,-; Sampson v. Coke, 5 Barn. & Aid. 606 ; Co. Litt. 252, b. ; 4 Pet. 496 ; Landes v. PerMns, 12 Mo. 259 ; Osterhout v. Shoemaker, 3 Hill, 518 ; Watkins v. Holm, 16 Peters, 54; Blight v. Rochester, 7 Wheat. 548 ; 1 Greenl. Ev. 28, 24, 25 ; 2 Smith’s Lead. Gas. 540 and notes ; Jackson v. Spear, 7 Wend. 401 ; Jackson y. Hopkins, 12 Wend. 105; Averill v. Wilson, 4 Barb. 180.)
    HI. The court erred in refusing to confine the damages within the penalty of the bond. (Briscoe v. King, Cro. Jac. 281; Suffield v. Baskerville, 2 Mod. 36 ; Smith y. Stewart, 6 Blackf. 162 ; Drummond y. Richard, 2 Munf. 337 ; Culyer y. Sissom, 8 Corns. 265; Bold y. Molineux, Dyer, 14 6. 17; 2 Parson on Contracts, 22 note v. ; Shep. Touch. 375-7 ; 5 Rep. 216 ; Sedgwick on Damages, 425; Crawford y. Woodward, 8 Mo. 353 ; 1 Mo. 79 ; United States y. Brown, Paine C. C. 422 ; Hurlstone on Bonds, 7 ; 14 Barb. 242.)
    The judgment of the court below should be reversed, 1st, because by the limitations of the deed of 1832, Howard Christy, as survivor, was seized in fee simple at the time the deed and bond of the 7th of October, 1842, were executed, and Mrs. Sweringen having released nothing, is not entitled to any damages, and because there was no breach of the condition of the bond; 2d, because, conceding the remainder over to the heirs general to be good, yet the plaintiff was not entitled to recover judgment beyond the penalty of the bond ; 3d, because, even if Mrs. Sweringen were entitled, the judgment should not have been for more than one-eighth of Edmund’s two lots, or one-half of a child’s share, viz., one-sixteenth of the value of the property, whereas it is for one-sixth; 4th, because the outstanding debts encumbering Edmund Christy’s estate were not deducted in computing the pretended interest of Mrs. Swer-ingen ; 5th, because the interest in Edmund’s share, which Howard was entitled to as an heir at law, was not deducted in ascertaining the value of Mrs. Sweringen’s pretended interest; 6th, because the administrators should not have been estopped from denying the title of the obligees ; 7th, because parol testimony was admitted to prove an agreement alleged in the petition to help the bond, and enlarge its obligations ; 8th, because there was no consideration for the bond.

      F. Ji. Dicle, for respondents.
    I. The effect of the conveyance by William Christy to Edmund T. Christy was to vest in him a defeasible fee simple estate upon condition, and his estate was what at common law, before the statute de donis conditionalibus, was called a fee simple conditional. (2 Black’s Com. 109, 154, 79, 164 ; 4 Kent Com. 9, 10, 11, 12, 853 ; 2 Cruise, tit. 13, ch. 1, sec. 9,-; Shep. Touch. 117, 118,-; Geyer’s Big. 124-5 ; R. C. 1825, p. 216, 491 ; 1 Co. Litt. by Thomas, p. 587, 591 ; Martin v. Strachan, 5 Term Rep. 107.; Den v. Schenck, 3 Halst. 29 ; Jackson v. Topping, 1 Wend. 388 ; Morgan v. Morgan, 5 Day, 517.)
    II. This estate being a fee simple, after it no remainder could be limited, nor could there be any reversion ; there was the mere possibility of a reverter to the grantor and his heirs, if by the condition annexed to the fee the estate ceased in the grantee; and the condition in this case being, that the fee shall be determined if Edmund T. Christy died leaving no heirs of his body; and as he died without leaving issue, the fee simple was thus defeated, and the possibility of reverter became operative, and an existing estate, and by such estate the heirs of William Christy t'ook the land of Edmund in fee upon his death. <4 Kent Com. 10, 16, 17, 199, 200, 269.)
    III. Howard’s lots were vested in him in like manner, with ¡like estate, and on his decease passed by reverter to the heirs of the grantor. There was no estate in perpetuity intended to be given to Howard.
    IV. There was no cross remainder of Edmund’s lots to Howard, such not being admissible by the rules of law after a fee given to Edmund.
    V. The parties in 1842 agreed for valuable consideration upon the construction of the deed of William Christy of 1832 ; such construction is an essential part of the contract then made, and is not an open question. Howard P. Christy, as one party to the contract, and the other heirs of William Christy as the other parties, having in 1842 put a practical construction on the facts in this case, and Mrs. Sweringen having actually relinquished and conveyed an interest in two of the lots, for which she then received no pay, nor was to receive any unless Howard died childless, and the parties agreeing if he did so die by the effect of the deed of William Christy she would be part owner of all the lots, such construction becomes part of a contract, and Howard Christy having enjoyed for the remainder of his life the benefit of the concession made to him, it can not now be denied that the part disadvantageous to him is effectual and binding. (Taylor & Mason v. Zepp, 14 Mo. 482 ; Dezell v. Odell, 3 Hill, N. Y., p. 215 ; Page & Bacon v. Butler, 15 Mo. 73 ; 9 Mo. 156 ; 15 Pick. 40.)
    YI. The evidence of the plaintiff is competent in law to prove the facts fixing the liability of Howard P. Christy. (1 Greenl. Ev. § 268 ; G-ale v. Nixon, 6 Cowen, 445 ; 2 Phil. Ev. 353 ; 13 Mo. 152; 9 Mo. 156 ; 15 Mo. 160 ; 17 Mo. 58.)

       This case was decided at the October term, 1856, of the Supreme Court. Lbonakd, J udge, does not concur in the opinion of the majority of the court. No opinion has however been filed by him.

   Scott, Judge,

delivered the opinion of the court.

The deed of William Christy and his wife, bearing date the 20th of September, 1832, conveying lots to their two sons Howard and Edmund, contained these words : “to have and to hold the premises aforesaid, with all the appurtenances thereto belonging, to them and their heirs forever, upon condition that should either of the grantees herein named die without leaving legal heirs of their body, the survivor shall inherit the whole, of the property hereby conveyed ; and should both die without leaving legal heirs as aforesaid, the property hereby conveyed shall revert to the other legal heirs of the said William and Martha T.” The lots referred to in the deed were conveyed by separate metes and bounds, two to Howard and two to Edmund.

It is laid down in the books as settled that conveyances to uses are to be construed in the same manner as deeds deriving their effect from tbe common law. For, since tbe statute of uses, a use is turned into a legal estate to all intents and .purposes ; it must be conveyed exactly in tbe same manner and by the same words. (Cruise, tit. Deed, cb. 20, sec. 71, 72.) There is no use declared in that part of tbe deed whose construction is involved in this controversy affecting tbe question before us. Tbe deed is a common bargain and sale, operating under tbe statute of uses, without any declaration of trusts or uses, and is consequently more clearly comprehended, within tbe rule just stated than any others.

Tbe limitations of tbe deed of William Christy and bis wife being construed in reference to the rules of the common law, nothing is clearer than that Howard and Edmund Christy severally took estates in tail in tbe lots granted to them. There is a universal concurrence among law-writers that a gift to a man and bis heirs, and if he shall die without heirs of his body then to others, conveys an estate tail. (2 Prest, on Est. 4, 504; Cruise, tit. Deed, ch. 21, sec. 81 ; Crabbe’s Law of Real Property, § 975.)

Here then are estates tail created. So soon as that was done those estates became subject to the operation of the 4th section of the act regulating conveyances, approved February 14, 1825, which provides that “ in cases where by the common law any person or persons would now be, or might hereafter become, seized in fee tail of any lands, tenements or heredita-ments by virtue of any devise, gift, grant or other conveyance heretofore made or hereafter to be made, or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be and become seized thereof for his or her natural life only; and the remainder shall pass in fee simple absolute to the person or persons to whom the estate tail would on the death of the first grantee, devisee, or donee in tail first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.” By this it will be seen that so soon as an estate tail is created, that estate is destroyed and another is substituted for it. It is done immediately upon tbe creation of the estate tail without any postponement. Now neither Howard nor Edmund had heirs of his body when the deed was executed, and the entail created ; consequently the remainder could not vest in the issue of either of them.

Here a question arises, whether by the terms of the act, above recited, the remainder therein mentioned can vest in any other person than one who by the course of the common law would be an heir to the estate tail had the estate not been destroyed. There is nothing in the terms of the act which shows -that it was not designed to destroy all estates tail. Entails were not congenial to our institutions, and the act was intended to break them up. If none but those who would have been heirs of the entail were intended, then it is obvious that the statute would not reach any of those cases in which the first grantee in tail had no issue. We are not warranted in supposing that the legislature only intended to break up particular entails. The reason that would break up one would break up all others. We do not see anything in the words of the act that requires this restricted construction. The statute says, the remainder shall pass to the person to whom the estate tail would on the death of the first grantee in tail first pass according to the course of the common law by virtue of the grant. It is true, as the first taker of the estate tail had no heir in the case supposed, it was uncertain at the creation of that estate whether the entailed estate would ultimately vest in the heir in tail or in him who was to take in the event there was no heir. But there is no reason why this uncertainty as to the person who would be the first taker of the entailed estate should render the statute nugatory. The uncertainty was between two whom the grantors preferred to all others. If one could not take, it was intended that the other should. Bearing in mind that there was no reason why one estate tail should not be abolished as well as another, the words employed in the act sufficiently indicate that another than the heir in tail may be the first taker according to the course of the common law by virtue of the grant. Had the general assembly designed that the heir in tail alone should be the first taker, why speak of the person to whom the estate would first pass by virtue of the devise, gift, grant or conveyance ? After giving a life estate to the first grantee in tail, how much more compendious and appropriate would it have been to have said that the heir of such grantee shall have the fee simple or take the estate as purchaser ? The language used could only have been employed on the supposition that, limiting the fee simple to the heir in tail alone, there would be cases which would escape the operation of the statute.

As we maintain that another than the heir in tail may be the first taker of the entailed estate after the death of the first grantee in tail, the question arises as to the manner in which the fee simple is to be disposed of, when, as in the case before us, the first grantee in tail has no heir at the creation of the estate tail, but the'remainderman is in existence to whom the estate is to pass in the event that the first grantee of the estate tail dies without issue. ' Is the fee simple in abeyance ; or does it pass to the remainderman, subject to be divested by the birth of issue of the first grantee of the estate tail ? We are of the opinion that the fee simple passes to the remainder, subject to be divested by the birth of issue of the first grantee of the estate tail. Such a construction of the act seems to be necessary in order to avoid the mischief that would ensue from a contrary interpretation. If the fee simple Was judged to be in abeyance, the circumstances of this case furnish an instance in which the fee simple would be lost or confiscated. Edmund Christy, as re-mainderman, dying when the fee was in abeyance, before the death of Howard, who was childless, there would be no person to whom the fee could pass. His heirs could not take as such, as there had been no interest or estate in him. The fee simple having never vested in Edmund, there would be nothing in him that was transmissible by descent. If his heirs took at all it must be as purchasers. There was nothing remaining in the grantors of the entail. Their whole estate passed by their deed. The fee simple then must have escheated, as there would be no person to take it, the words of the act clearly showing that none but he, to whom the estate tail would first pass after the death of the first grantee in tail, according to the course of the common law, by virtue of the devise, gift, grant or conveyance, can be a taker of the fee simple. The language used indicates that it was intended that the fee simple should pass presently. It is in harmony with the spirit of the act to make the fee simple pass upon the creation of the estate tail. The first taker, whoever he may be, will have the immediate power of disposal. If he is another than the heir in tail, he may alien, subject to the contingency of being divested by the birth of issue of the first grantee of the estate tail.

It was intimated that the ■ estates of Howard and Edmund Christy being entails only by implication, the court should not, in construing the fourth section of the act regulating conveyances, raise an estate tail in order that it might be destroyed. If it was conceded that those estates were such, yet they would be comprehended within the words of the act. We are required to ascertain whether the estate would by the common law be an entail. Whether it be an express estate tail, or one by implication, it is equally an entail within the statute. But the answer to this objection is that the implication cuts down what would otherwise be a fee simple, and leaves Howard Christy the quantum of interest he would take by making it an entail. The only difference is that he would take his own instead of Edmund’s lots.

In construing the deed of William and Martha Christy, we have not deemed it our duty to regard their intention. It is unquestionably a maxim of our law that all deeds shall be construed favorably and as near the apparent intention of the parties as possible consistently with the rules of law. If, however, the intention of the/parties is contrary to the rules of the law, it will then be otherwise ; for it would be highly improper and inconvenient to permit private persons to contradict the general rules of law. (Cruise Dig. tit. Deed.) The parties have created an estate tail against the policy of the law ; the statute has declared that such estates shall not exist, and has prescribed the disposition which shall be made of them. Now in dealing with the subject it is obviously the duty of the courts to regard the intent of the legislature and not that of the parties . The construction given to the act is not designed for the circumstances of this particular case only, but for all others which may arise.

The result to which we come, deduced from what has been said, is that Howard Christy took an estate for life in his two lots, with a right to the fee simple in Edmund’s two lots if he died without children ; and that Edmund took an estate for life in his two lots, with a right to the fee simple in Howard’s two lots if he died without children. As Howard died without children, the fee simple which vested in Edmund descended on his death to his heirs, and continued in them, of whom Howard is one ; and as Edmund died without children, the fee simple of his lots which vested in Howard continued in him, and was subject to his absolute disposal. So Howard' became entitled absolutely to Edmund’s two lots, and to an heir’s share in his own two lots, derived by inheritance from Edmund. We can see no reason whatever for treating Edmund’s right to the fee simple in Howard’s lots .in a manner different from that in which Howard’s right to the fee simple in Edmund’s two lots is treated.

We are of the opinion that there is no estoppel of the defendants. The case, as presented, shows that there was a disagreement or doubt as to the proper construction of the deed of 1882. As the rights of the parties under that deed would be fixed at the death of Howard (Edmund being dead) it was agreed that they should convey their interest in the four lots to Howard, he paying to the plaintiffs the value of any interest in them they might convey, to be ascertained at the death of Howard. Taking all parts of the bond together, we can not avoid the conclusion that such was the intention and understanding of the parties. If it was supposed by the parties that they had agreed with Howard that upon his death, without issue, the heirs of William Christy should have the entire property in the four lots, it would never have been written in the condition of the bond : t£ Now, if the said contingency in the first deed mentioned shall happen, whereby the said obligees or their heirs would have been entitled by virtue of said first mentioned deed to said property, or any -part thereof, or any interest in the same, had not said release been executed, and the said Howard E. Christy, &c., shall well and truly pay to the said James T. Sweringen and Martha his wife, &c., the value, at the time of happening of said contingency, of the portion, part or interest which the said Sweringen and wife, their heirs, &e., would have been entitled to in said property in said first deed described by virtue of said deed, had not the said release been executed, then this obligation shall be void,” &c. If the parties had fixed it as the agreement that upon the death of Howard, without issue, the whole estate should pass to the heirs of William Christy, could they not have expressed themselves in language very different from that employed ? The words, to have been consistent with such an idea, would have been that Howard Christy should pay the value of their share or portion in the property or the four lots. Had the compromise supposed been made, the share or portion of Sweringen and wife in the property would have been ascertained ; and the words “ or any part thereof, or any interest in the same,” are inconsistent with the notion that there had been any adjustment of their interest. Had the parties agreed upon an interpretation which, in their opinion, might be different from that the deed would receive as it came from the hands of the grantors, would they have provided that Sweringen and wife should be paid the value of the interest which they would have been entitled to in said property in said first deed described by virtue of said deed ? If they supposed they had altered the construction of the original deed, could they not have provided for the payment of the value of the interest according to the agreed construction, and not their interest by virtue of the original deed ? The language in the latter part of the condition above cited sufficiently indicates that the recital, whereas, upon the happening of certain contingencies in said deed mentioned and contained, the said property, lots and parcels of ground therein specified would, by the terms of said deed, 'revert and belong to the heirs of the said grantors in said deed,” &c., was not intended to fix the construction of the deed of 1882, but was only intended as a recital of its terms, leaving the effect of the whole deed to be ascertained at the death of Howard.

It has been twice decided by this court that an action of covenant will not lie on a penal bond with collateral condition. (1 Mo. 79; Crawford v. Wooodward, 8 Mo. 353.) If covenant will not lie on the condition, then the parties are limited in their recovery to the penalty. In the case of Lowe v. Peers, 4 Burr. 2225, Lord Mansfield said, “ there is a difference between covenants in general and covenants secured by a penalty or forfeiture ; in the latter case the obligee has his election; he may either bring an action of debt for the penalty and recover, or if he does not choose to go for the penalty he may proceed upon the covenant and recover more or less than the penalty.” This was in an action of covenant brought on an instrument whereby the defendant promised to the plaintiff not to marry any other person than herself, and agreed to pay the plaintiff £1000 if he married any one else. The case of Martin v. Taylor, 1 Wash. C. C. -, in which Washington, J., uses language of similar import to that of Lord Mansfield above cited, was on a covenant whose performance was secured by a penalty similar in every respect to the case in Burrows. The instrument between these parties is unlike those in the controversies above cited. Here there is no covenant. Sedgwick, in speaking on this subject, says, “ but in the condition of a bond to do or refrain from any particular act secured by a given penalty, does any agreement appear absolutely to do the act or to respond in indefinite damages ? Practically we know that it is not so understood. The obligor always considers the penalty as limiting the extent of his obligation.” (Sedg. on Dam. 426.) According to the decisions heretofore made by this court, the plaintiffs will be limited in tlieir recovery to the penalty, and most sue on the instrument.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded.