Page:State v. Johnson.pdf/23

26 Ark.]  1870.]   far back as Charles II, and William III., we find the accused had a trial by jury. King v. Mayor of London, 1 Shower, 251; King v. Carpenter, 2 Shower, 47; King v. Bridge, 1 William Blackstone, 45.

In the case of King v. Francis, as far back as 1788, an objection was made to granting a new trial on an information in the nature of a quo warranto. "The court granted a new trial, saying that of late years, a quo warranto information had been considered merely in the nature of a civil proceeding, and that there were several instances since the case in Streye, in which a new trial had been granted." 2 Term, 484.

These cases show that, in the King's Bench of England, these proceedings were considered civil actions, over one hundred years ago, and they were there tried by jury. And Mr. Selwin, in his Nisi Prius, vol. 2, 1180, says: "In a quo warranto to try defendant's right to be bailiff of Scarborough, in setting out his right, he showed his election," etc., etc., "and it being objected on the trial that this record ought not to be read against the defendant, and the judge having allowed it to be read, and left the whole evidence on both sides to the jury, to consider whether these persons were bailiffs," etc.

This shows, then, a jury trial, not on an information in the nature of quo warranto, but upon a writ of quo warranto. So, if there was a real difference, it is not shown in the mode of trial.

In Pennsylvania an information in the nature of a quo warranto, to test the right of an accused to hold an office, is triable by a jury. ''Com. v. Woelper, et al. 3 Serg. & R.'' 28.

In the case of the ''Commonwealth v. Del. and H. Canal Company, upon quo warranto, the court, in speaking of their statute authorizing special proceedings in that case by quo warranto,'' etc., say: "It is matter of no importance to the parties whether this authority is exercised in the common law or in the equity form, provided the right of trial by jury is not interfered with, as it cannot be in this case." 43 Pa. sec. 300.

Here this able court recognized the right of trial by jury in