the introduction of new and arbitrary methods of trial, which under a variety of plausible pretences may, in time, imperceptibly undermine this best preservative of English liberty."
In conclusion of this question: If this right was not a pillar in the foundation of free government, the declarations in our Constitution, that "it shall remain inviolate," and our statute, that, "All issues of fact joined in any suit at law, in any court of record, shall be tried either by the court, by jury, or by arbitrators; First, the trial shall be by the court, where neither party shall demand a trial by jury; Second, a, trial shall be by jury when either party shall demand such trial; Third, It shall be tried by arbitrators on the agreement of the parties to refer the matter in dispute to arbitrators;" Gould's Digest, section 99, chapter 133, would determine our ruling.
No one denies this being a suit at law, in a court of record; and there can be no question but the issue is purely one of fact. This law says in all such cases, the trial shall be by jury, where either party demands it. As no exceptions are made in this law, we are of opinion, a jury trial ought to have been awarded.
The power of this court to exercise original jurisdiction in cases of quo warrarnto and mandamus, is a question not free from difficulty. The various Constitutions of the State, from that of 1836, to the present time, we regard as substantially the same upon this subject.
In the earlier history of the State, the question seemed not to have attracted any marked attention and discussion, and this court assumed jurisdiction, and occasionally the same was exercised, up to the twelfth volume of the Reports, when, in the case of Allis, ex parte, a most elaborate consideration of the subject was had, and it was determined that such writs should be issued by this court, only in the exercise of its appellate powers, or superintending control over inferior tribunals, when such interposition was necessary to prevent a failure of justice; and that ruling was the settled law of this court up ao the twenty-fifth volume of Reports. See Marr, ex parte, 12
