ART. 75] REMOVAL OF CAUSES. 1683

Who may remove.

The right of removal resides in the parties plaintiff or defendant, and not
in each of several plaintiffs or defendants, the word "parties" being used In
a collective sense. Baltimore County v. United Rys. Co., 99 Md. 87; Cooke v.
Cooke, 41 Md. 369; State v. Gare, 32 Md. 499.

A "next friend" is a party within the meaning of this section, and capable
of making the suggestion of removal. Thomas v. Safe Deposit Co., 73 Md.
461; Deford v. State, 30 Md. 198.

Criminal cases not punishable by death.

In criminal cases other than those punishable by death, in the absence of
proof that the lower court acted arbitrarily and abused, or refused to exercise
the discretion vested In it, its action will not be reversed. Proof held insuffi-
cient. Affidavits. Newspaper comments. Downs v. State, 111 Md. 246.

The act of 1874. ch. 364 (amending article 4, section 8, of the Maryland
constitution) held applicable where it was in force when a traveser's sug-
gestion of removal was filed, although it was not in force when he was
indicted. The requirements of this section not having been complied with,
the traverser was not entitled to a removal. Smith v. State, 44 Md. 533.
And as to the application of the act of 1868, ch. 180 see Price v. Nesbltt. 29
Md. 266.

Generally.

Where a party complies with the conditions prescribed by this section, the
court (in all civil cases and in criminal cases punishable by death), has no
discretion in the matter of ordering the removal, and subsequent proceedings
are coram non judice. Griffin v. Leslie, 20 Md. 18.

An order removing or refusing to remove a case, civil or criminal, if
punishable by death, finally adjudicates a constitutional right and an appeal
or writ of error may be immediately prosecuted. The state may remove a
criminal case upon an affidavit made by the state's attorney, and the removal
may be made at any time before the panel of Jurors is completed by being
sworn. McMillan v. State, 68 Md. 309. And see Grlffln v. Leslie, 20 Md. 19;
Price v. State, 8 Gill, 297; Kimball v. Harmon. 34 Md. 402.

The right of removal should be brought before the court of appeals by
petition assigning errors, and not by bill of exceptions. Smith v. State. 44
Md. 533; McMillan v. State, 68 Md. 309.

It is within the discretion of the court to direct the removal of a case to
another court either within or without the same circuit. The removal of a
case from the court of common pleas to the superior court of Baltimore city
is a removal "to some other court''. Weiskittle v. State, 58 Md. 156; DeMur-
giondo v. Frazler, 63 Md. 95. And see Atlantic, etc., Co. v. Maryland, etc..
Co., 64 Md. 304.

The right of removal may be waived, and an agreement by a party not to
remove a case in consideration of a promise by the other party not to press
it to trial at a certain term, prevents a removal at any subsequent term,
unless there should be some new cause for removal. Caledonian, etc., Co. v.
Traub, 86 Md. 93. And see Seth v. Chamberlaine, 41 Md. 194. Cf. Biscoe v.
State, 68 Md. 294.

The court in which the action was originally instituted retains jurisdiction
until that of the court to which the case is removed, attaches upon receipt of
the transcript, and the former court has power to determine what constitutes
the record and to enforce the execution of the order of removal. When
the order of removal need not be signed by the judges of the court. Seth v.
Chamberlain. 41 Md. 194. And see Manly v. State. 7 Md. 147. Cf. Biscoe v.
State. 68 Md. 294.

A case can not be tried before the court without a jury without the con-
sent of both parties, and such consent should appear, upon appeal, by the
record. A suggestion for removal stating that "the parties believe they can
not have a fair, etc.," not passed upon as to its validity, but criticised.
Desche v. Gies, 56 Md. 137.

The same party can not remove a case twice. Cooke v. Cooke, 41 Md. 367;
Price v. State, 8 Gill, 296.

An order for the removal of a case to a court which has no existence,
is void and leaves the case pending as if there had been no order of removal.