ON APPLICATION FOR REHEARING.
Long, J.This cause was submitted at the October term, 1897, and an opinion was filed December 7th following, affirming the decree below. Ante, 160. Before the filing of the opinion, the record and briefs were carefully examined by the whole court; and, from such examination, we were all of the opinion that the defense sought to be made of undue influence by the elder Blodgett upon his two sons, Charles and Ralph, was not sustained by the proofs. As it was'there said: “Duress or undue influence must be such as would overcome the will of a person of ordinary firmness.” No such influence was shown to exist, but, on the contrary, it clearly appeared from the testimony of Charles that he executed the mortgage to keep peace in the family, and, from the testimony of Ralph, that he executed it under the direction and advice of his attorney. We can but reiterate that the defendants wholly failed to establish any such claim as set up.
*170Counsel for defendants, however, now make a motion for rehearing, not upon the ground upon which the opinion was based, but for the reason that the writer of the opinion omitted to pass upon the question of the right of the appellants to a jury, which was demanded in the court below, and refused. We had supposed that it was generally understood by the bar that this question was finally and conclusively settled in Brown v. Kalamazoo Circuit Judge, 75 Mich. 274; and the learned counsel for the defendants seem to have regarded the question as decided adversely to their claim here, for in their brief in the original case they say:
“The demand was denied [in the court below], under the decision in the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274. It is respectfully submitted that this decision should be reversed, which will appear from a review of the reasons advanced by Mr. Justice Campbell in support of the decision.”
We cannot agree with counsel in that contention. That opinion was filed at the June term, 1889, nearly 10 years ago, and has since been adhered to by this court, and followed in every circuit court in chancery in the State. In it, it was held that Act No. 267„ Pub. Acts 1887, is unconstitutional in so far as it assumes to provide a final' decision of questions of fact in chancery suits by the verdict of a jury, and the rejection of testimony by the presiding judge as in a suit at law. - This opinion was concurred in by the whole bench, and was announced after a very careful review of the Constitution of the United States and of this State, as well as the common law and the English divisions of law and equity; and it was there determined that the cognizance of equitable.questions belongs to the judiciary as a part of the judicial power, and, under our Constitution, must( remain vested where it always has been vested heretofore. But counsel cite certain provisions of the statutes, of which they now claim Mr. Justice Campbell misconceived the true intent and meaning. Counsel also cite certain cases decided both before and after the case of *171Brown v. Kalamazoo Circuit Judge, claiming they have some bearing on the question, and upon which they ask a reversal of that case. These statutes were referred to by Mr. Justice Campbell as having reference to appeals in chancery cases, and the cases referred to by counsel here hold that appeals in chancery cases are statutory, — a very different question from the one dealt with by Mr. Justice Campbell. The statute of 1887 attempted to deprive the court of equity of the power to determine questions of fact, and to substitute the verdict of a jury in place of it; and, as well reasoned by Justice Campbell, the legislature had no such power. He says:
“The system of chancery jurisprudence has been developed as carefully and as judiciously as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere.”
This opinion has been cited with approval in two subsequent cases: Laprad v. Sherwood, 79 Mich. 523; Maier v. Wayne Circuit Judge, 112 Mich. 491. The cases cited by counsel which they insist support their contention that they were entitled to a jury are Demaray v. Little, 17 Mich. 387; Cady v. Manufacturing Co., 48 Mich. 137; People v. Hanrahan, 75 Mich. 611; Tillotson v. City of Saginaw, 94 Mich. 240; Lake Superior, etc., Iron Co. v. Auditor General, 79 Mich. 351; Merriman v. Peck, 96 Mich. 603; People v. Bussey, 80 Mich. 501; Schafberg v Schafberg, 52 Mich. 429; Maier v. Wayne Circuit Judge, 112 Mich. 491. Most of these cases treat of the question of appeals in chancery, and hold that such appeals are governed and controlled by the statute, and that, in the absence of statute, no such right of appeal exists. Counsel for defendants contend that “therefore the act of 1887 is constitutional, notwithstanding it takes away from the appellate court its former statutory power to disturb the verdict of a jury in the lower court.”
*172The court of chancery has always had the right to pass upon questions of fact without the intervention of a jury. This is so under the English practice, and has ever been-the practice in this State. The rules of practice in this State were largely shaped by legislation in accordance with the views of Chancellors Farnsworth and Manning prior to the adoption of the present Constitution. Since the adoption of the present Constitution, no attempt was made by the legislature, until the act of 1887, to deprive the chancery court of its power to determine questions of fact in all cases coming before it. The framers of the Constitution of 1850 did not attempt by that instrument to limit its jurisdiction, or to take from it the powers then possessed. Those powers and jurisdiction, by the Revised Statutes of 1846, were co-extensive with the powers and jurisdiction of the court of chancery of England, with the exceptions, additions, and limitations created and imposed by the Constitution and laws of the State. It is undoubtedly within the power of the legislature to change the formalities of legal procedure; but, as said in Brown v. Kalamazoo Circuit Judge:
“ It is not competent to make such changes as to impair the enforcement of rights. * * * There are various kinds of interests and controversies which cannot be left without equitable disjnosal without either destroying them or impairing their value. * * * The functions of judges in equity cases in dealing with them is as well-settled a part of the judicial power, and as necessary to its administration, as the functions of juries in common-law cases. ”
But the right of appeal in chancery cases was recognized in the Revised Statutes of 1846, and has since been recognized as a part of the chancery procedure.
But counsel contend that the cases of Schafberg v. Schafberg and Maier v. Wayne Circuit Judge, supra, support their contention. The former case was fully discussed in the latter, in which Mr. Justice Hooker said:
“ It is said that these comments [in the Schafberg Case\ are obiter dicta. The decision is put upon two grounds *173one of which is that the proof failed, and so it is possible to say that the decision would have been the same had the question of amendment been omitted; but it may also be said that the decision of the merits was obiter, because the bill must have been dismissed upon the other ground so fully discussed. But, whatever may be thought of the consideration given to this statute in the Schafberg Case, we may find some light thrown upon it by the case of Brown v. Kalamazoo Circuit Judge, 75 Mich. 274. This case arose upon a statute (Act No. 267, Pub. Acts 1887) which attempted to ingraft trial by jury upon equity practice; and, in a learned discussion of the subject by Mr. Justice Campbell, this court vindicated the constitutional right of trial by a chancellor in equity cases [75 Mich. 285], closing with the following emphatic utterance: ‘ Theory amounts to nothing in the history of jurisprudence. The system of chancery jurisprudence has been developed as carefully and as judiciously as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere.’ ”
This language could not be misunderstood. So that in 1889 the question was settled, so far as the power of the legislature is concerned to ingraft any such rule upon the equity practice; and as late as 1897 the principle is again enunciated, and the above language quoted with approval by this court. We find counsel, howevter, still persistently urging that a trial by jury in equity cases may be had.
In Dunn v. Dunn, 11 Mich. 286 (decided May 20,1863), it was said by Mr. Justice Campbell:
“There is no authority, which I have discovered, which renders it incumbent on any court of chancery, or even proper, to follow a verdict which is not calculated to aid the conscience of the court in solving questions of fact otherwise doubtful. Without going into cases in detail, I refer to East India Co. v. Bazett, Jac. 91; O’Connor v. Cook, 8 Ves. 535; Cleeve v. Gascoigne, 1 Amb. 323; Lord Faulconberg v. Peirce, Id. 210; Locke v. Colman, 2 Mylne & C. 42; Bootle v. Blundell, 19 Ves. 494, 500; Blackburn v. Gregson, 1 Brown, Ch. 423; Armstrong v. Armstrong, 3 Mylne & K. 45.”
*174We had thought the distinction between the cases cited by counsel, holding that chancery appeals are statutory, and the present question, so clear, and the point at issue here so well settled by the other cases cited by them, that the contention in their original brief would not be seriously urged. It has never been the practice in this court to discuss every claim made by counsel in briefs, and, indeed, space in the published reports would not admit of that course. But it is intended to discuss every question which may turn the scale one way or the other, or where it may be thought to be of interest to the profession. When, however, a point has been so squarely decided as the present, and that decision often referred to in other opinions, it cannot interest the parties or the profession to again repeat what has been formerly held.
The motion for rehearing must be denied, with costs.
The other Justices concurred.