BROWN v. BUCK.jalis (Supreme Court of Michigan, 1889. 75 Mich. 274, 42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438.) CAMPBELL, J. Relator represents that in April, 1888, a bill in chancery was filed in Kalamazoo county by Sarah E. Field, to set aside a deed made to relator by Thomas B. Lord, who was father of both parties, upon the grounds generally set up in such cases, of fraud, undue influence, and incapacity. Issue being joined, the complainant made claim under the statute of 1887 for a trial by jury. This demand was allowed, and certain issues were submitted, which to some extent covered the charges, but not in a very tangible way, and the jury gave answers to the specific questions. The circuit judge, acting entirely on these answers, made a decree in e favor of complainant, canceling the deed, and refused to exercise his own judgment in the case, A mandamus is asked to require him to set aside the decree, and to hear the cause and decide it himself. It is due to the circuit judge to say that he took this course to enable the validity of the statute to be passed upon in this court, inasmuch as this question has been raised in several parts of the state, and needs to be settled in order to procure uniformity of practice. A preliminary objection was made to the use of the process of mandamus to determine the dispute, which it is insisted should come up by appeal. But there is no force in the objection. We are informed by the return that the circuit judge never passed upon the questions of fact himself. An appeal would, therefore, in some cir 1 For discussion of principles, see Eaton on Equity (2d Ed.) §§ 1-4. 2 The style of this case in 42 N. W. 827, and 5 L. R. A. 226, is Brown v. Kalamazoo Circuit Judge. THROCKM.EQ.JUR. (2D ED.)-1 cumstances, and in one view of the case, require us to act as a tribunal of original powers, and not by way of review, which, in equity cases, is not in our province. It might also, and probably would, require us either to decide on a partial state of facts, or remand the cause for rehearing, which is not contemplated in chancery appeals. If the circuit judge was wrong in the theory on which he thought it his duty to act, the case has never been heard at all in any legal way. The mandamus is not asked as a means of reviewing the merits, but only to compel an original hearing. For this purpose it is a proper remedy. The statutory provision now in controversy consists of a recasting of a section of the old Compiled Laws, intended to give an opportunity of trial in open court, if the court deem it proper, and providing means in such case for securing a record of the testimony. to be used on appeal. This section, which was originally section 3511 of the compilation of 1857, went through a number of changes before it became section 5093 of the compilation of 1871, and after several more changes appears as section 6647 of Howell's St. Some confusion has existed because, by introducing so many forms of one section, it has not always been easy to construe it in connection with the whole chapter in courts of chancery, but they have, by practical construction, been fairly harmonized. In 1887 this section was sought to be radically changed by converting a chancery hearing to something meant to resemble a trial at law, but confining this change mostly to jury trials, and not putting hearings without a jury on the footing of common-law trials without a jury. As this is the only section altered, and it is but part of a full system, matured and simplified by the experience of considerably more than half a century, it is brought to our attention under two points of view: First, as claimed to be so imperfect and incongruous as to be void for its deficiencies; and, second, as invalid on broader constitutional grounds. The former of these two questions seems proper to be glanced at first; and it makes it desirable to refer somewhat to the growth of the system. As Michigan had a long territorial experience, its judicial system naturally became fashioned in close analogy to that of the United States, and so recognized and perpetuated in their essentials the classification of legal and equitable rights as involving the necessity of separate administration in important particulars. The constitution of the United States recognizes the division of ordinary civil jurisprudence with cases at law and cases in equity, and it has been held by the supreme court of the United States that this recognition puts it beyond the power of congress to make any serious change in that classification. In Carpentier v. Montgomery, 13 Wall. 480, 20 L. Ed. 698, the importance of the distinction, and the impracticability of disregarding it, was somewhat explained in such a case as is now under consideration, as in several previous cases it had been held that the policy enjoined by congress of securing as far as possible uniformity of practice between the state and United States courts could not be carried so far as to confound the legal and equitable jurisdictions. U. S. v. Howland, 4 Wheat. 115, 4 L. Ed. 526; Boyle v. Zacharie, 6 Pet. 658, 8 L. Ed. 532; Robinson v. Campbell, 3 Wheat. 222, 4 L. Ed. 372; Livingston v. Story, 9 Pet. 654, 9 L. Ed. 255; Russell v. Southard, 12 How. 139, 13 L. Ed. 927; Neves v. Scott, 13 How. 268, 14 L. Ed. 140; Boyce v. Grundy, 3 Pet. 210, 7 L. Ed. 655; Bodley v. Taylor, 5 Cranch, 191, 3 L. Ed. 75. These and many other cases which might be cited show the general course of decision in the supreme court. As Michigan received the common law free from any older statutory admixture, it naturally followed the English divisions of law and equity, and under the enlightened administration of Chancellors Farnsworth and Manning the practice, which was largely shaped by legislation in accordance with their views, received the form which it now has, and our statutes embody in a very intelligible way a system so complete as to need very little aid from other sources. So far as the statutes provide for the earlier stages of a cause, up to the preparation for hearing, this new statute does not interfere except as to testimony, in which the change is radical, as it is also radical in regard to the mode and incidents of the hearing and the preparations for appeal. And here occurs a series of difficulties requiring attention. As the law stood before, the testimony might be taken by deposition or in open court, and upon specific issues of fact suitable for a jury the aid of a jury might be invoked. But in all cases the testimony was secured and preserved for use on appeal, and in this court each case was to be reheard on the whole testimony, and on that rehearing this court was enabled and required to render its own decree, by simple affirmance if the decree below was satisfactory, and in other cases by such a change, partial or total, as would make the final disposition such as it should have been in the first place. But in all cases where the cause had proceeded to a hearing on facts, the law contemplated that this court should make a final disposition on the merits, and not remand it for a new trial or hearing on issues already once tried and decided. The sections of the statute which refer to the action of this court in appellate cases remain unchanged, and are the only statutory method of bringing into this court chancery appeals. As it is not competent for the Legislature to deprive the supreme court of its revisory jurisdiction over all the other state tribunals, no legislation which practically destroys it is valid. The statute of 1887 (Laws 1887, p. 358) undertakes to provide that "either party shall also be entitled to the right to a jury, to be demanded in the same manner as in a suit at law, and the verdict of such jury on any question of fact shall have the same force and Malul effect in the circuit [court] in chancery, and in the supreme court on appeal, as the verdict of a jury in an action at law. Whenever It requires but a little examination to discover that these changes cannot be carried into effect in practice, and are entirely in conflict with the rights of parties, as well as with the remainder of the retained chancery system. Merely formal defects could perhaps be corrected, but the defects are more than formal. Apart from the serious question whether, under cover of amending one section of the Compiled Laws, the whole body of the laws can be revolutionized, it is very certain that laws passed for one purpose, and under one title or category, cannot be made to do duty under a foreign enactment, which was not in any way within their contemplated range. While the old law was adequate to secure the aid of jurors for advisory purposes, the case is different. when an attempt is made to give a trial by jury which shall have. the effect of a common-law inquest. The trial by jury in commonlaw cases is guarded by a large body of provisions designed to procure a fair and impartial jury, extending from the making of the jury-lists through the process of selecting and summoning regular jurors and talesmen to the completion of the panel through challenges and other tests. All of these provisions, whether statutory or not, belong to the machinery devised for the common-law courts, and cannot be adapted, without new and careful legislation, to anything else. But this new statute introduced other complications which are quite as serious. When any matter becomes involved in a chancery suit, the necessities of justice and equity require that all persons and all things. concerned in the controversy shall be brought before the court to |